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Rule1.2. Scope of representation and allocation of authority between client andlawyer.

(a) Subject to paragraphs (c) and (d), a lawyershall abide by a client's decisions concerning the objectives of representationand, as required by Rule1.4,shall consult with the client as to the means by which they are to be pursued.A lawyer may take such action on behalf of the client as is impliedlyauthorized to carry out the representation. A lawyer shall abide by a client'sdecision whether to settle a matter. In a criminal case, the lawyer shall abideby the client's decision, after consultation with the lawyer, as to a plea tobe entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client,including representation by appointment, does not constitute an endorsement ofthe client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of therepresentation if the limitation is reasonable under the circumstances and theclient gives informed consent.

(d) A lawyer shall not counsel a client toengage, or assist a client, in conduct that the lawyer knows is criminal orfraudulent, but a lawyer may discuss the legal consequences of any proposedcourse of conduct with a client and may counsel or assist a client to make agood faith effort to determine the validity, scope, meaning or application ofthe law.

Comment

Allocationof Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client theultimate authority to determine the purposes to be served by legalrepresentation, within the limits imposed by law and the lawyer's professionalobligations. The decisions specified in paragraph (a), such as whether tosettle a civil matter, must also be made by the client. See Rule1.4(a)(1) for the lawyer's duty tocommunicate with the client about such decisions. With respect to the means bywhich the client's objectives are to be pursued, the lawyer shall consult withthe client as required by Rule1.4(a)(2) and may take such action as is impliedly authorized tocarry out the representation.

[2] On occasion, however, a lawyer and a clientmay disagree about the means to be used to accomplish the client's objectives.Clients normally defer to the special knowledge and skill of their lawyer withrespect to the means to be used to accomplish their objectives, particularlywith respect to technical, legal and tactical matters. Conversely, lawyersusually defer to the client regarding such questions as the expense to beincurred and concern for third persons who might be adversely affected. Becauseof the varied nature of the matters about which a lawyer and client mightdisagree and because the actions in question may implicate the interests of atribunal or other persons, this Rule does not prescribe how such disagreementsare to be resolved. Other law, however, may be applicable and should be consultedby the lawyer. The lawyer should also consult with the client and seek amutually acceptable resolution of the disagreement. If such efforts areunavailing and the lawyer has a fundamental disagreement with the client, thelawyer may withdraw from the representation. See Rule1.16(b)(4). Conversely, the client mayresolve the disagreement by discharging the lawyer. See Rule1.16(a)(3).

[3] At the outset of a representation, theclient may authorize the lawyer to take specific action on the client's behalfwithout further consultation. Absent a material change in circumstances andsubject to Rule1.4,a lawyer may rely on such an advance authorization. The client may, however,revoke such authority at any time.

[4] In a case in which the client appears to besuffering diminished capacity, the lawyer's duty to abide by the client'sdecisions is to be guided by reference to Rule1.14.

Independencefrom Client's Views or Activities

[5] Legal representation should not be deniedto people who are unable to afford legal services or whose cause iscontroversial or the subject of popular disapproval. By the same token,representing a client does not constitute approval of the client's views oractivities.

AgreementsLimiting Scope of Representation

[6] The scope of services to be provided by alawyer may be limited by agreement with the client or by the terms under whichthe lawyer's services are made available to the client. When a lawyer has beenretained by an insurer to represent an insured, for example, the representationmay be limited to matters related to the insurance coverage. A limitedrepresentation may be appropriate because the client has limited objectives forthe representation. In addition, the terms upon which representation isundertaken may exclude specific means that might otherwise be used toaccomplish the client's objectives. Such limitations may exclude actions thatthe client thinks are too costly or that the lawyer regards as repugnant orimprudent.

[7] Although this Rule affords the lawyer andclient substantial latitude to limit the representation, the limitation must bereasonable under the circumstances. If, for example, a client's objective islimited to securing general information about the law the client needs in orderto handle a common and typically uncomplicated legal problem, the lawyer andclient may agree that the lawyer's services will be limited to a brieftelephone consultation. Such a limitation, however, would not be reasonable ifthe time allotted were not sufficient to yield advice upon which the clientcould rely. Although an agreement for a limited representation does not exempta lawyer from the duty to provide competent representation, the limitation is afactor to be considered when determining the legal knowledge, skill,thoroughness and preparation reasonably necessary for the representation. See Rule1.1.

[8] All agreements concerning a lawyer'srepresentation of a client must accord with the Rules of Professional Conductand other law. See, e.g., Rules1.1,1.8 and 5.6.

Criminal,Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer fromknowingly counseling or assisting a client to commit a crime or fraud. Thisprohibition, however, does not preclude the lawyer from giving an honestopinion about the actual consequences that appear likely to result from aclient's conduct. Nor does the fact that a client uses advice in a course ofaction that is criminal or fraudulent of itself make a lawyer a party to thecourse of action. There is a critical distinction between presenting ananalysis of legal aspects of questionable conduct and recommending the means bywhich a crime or fraud might be committed with impunity.

[10] When the client's course of action hasalready begun and is continuing, the lawyer's responsibility is especiallydelicate. The lawyer is required to avoid assisting the client, for example, bydrafting or delivering documents that the lawyer knows are fraudulent or bysuggesting how the wrongdoing might be concealed. A lawyer may not continueassisting a client in conduct that the lawyer originally supposed was legallyproper but then discovers is criminal or fraudulent. The lawyer must,therefore, withdraw from the representation of the client in the matter. See Rule1.16(a). In some cases, withdrawal alone might be insufficient. Itmay be necessary for the lawyer to give notice of the fact of withdrawal and todisaffirm any opinion, document, affirmation or the like. See Rule4.1.

[11] Where the client is a fiduciary, thelawyer may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not thedefrauded party is a party to the transaction. Hence, a lawyer must notparticipate in a transaction to effectuate criminal or fraudulent avoidance oftax liability. Paragraph (d) does not preclude undertaking a criminal defenseincident to a general retainer for legal services to a lawful enterprise. Thelast clause of paragraph (d) recognizes that determining the validity orinterpretation of a statute or regulation may require a course of actioninvolving disobedience of the statute or regulation or of the interpretationplaced upon it by governmental authorities.

[13] If a lawyer comes to know or reasonablyshould know that a client expects assistance not permitted by the Rules ofProfessional Conduct or other law or if the lawyer intends to act contrary tothe client's instructions, the lawyer must consult with the client regardingthe limitations on the lawyer's conduct. See Rule1.4(a)(5).

[14] Lawyers are encouraged to advise theirclients that their representations are guided by the Utah Standards ofProfessionalism and Civility and to provide a copy to their clients.

 

Effective November 1, 2005