Concept
Limiting the Scope
Scope, objective, and means of the representation
Limiting the Scope
Rule 1.2(c) settles how much of the client’s legal affairs an engagement covers, a question that comes before any dispute over who decides within it. The rule grants a power and attaches two conditions: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”1 The power lets the lawyer narrow what the representation includes. The conditions are reasonableness and informed consent, and each guards against a different danger. Informed consent ensures that the client knows what the lawyer will and will not do. Reasonableness stops a limit that leaves the lawyer’s advice unreliable or the client unavoidably exposed to serious risks, even when the client agreed.2 Because the client’s consent is a condition of the power, a limit is a term of agreement, and a lawyer cannot narrow an engagement by announcing it.3
The subsections below take the authority first, then each condition, and then two settings in which limits do much of their work: unbundled services and joint representation.
Authority to Limit Scope
Even without any agreement about limits, an engagement has edges. A lawyer is responsible only for the matters on which the client engages the lawyer’s services, and owes no advice about the client’s other existing or potential legal problems. For a matter unrelated to the representation, lawyer and client have not extended the attorney-client relationship.4 A client who hires a lawyer to handle a tax matter or to create a business association has therefore not retained that lawyer for a domestic relations problem, unless the client makes a further retention for that purpose.5
Limits between subject areas are thus built into every engagement. Rule 1.2(c) goes a step further and expressly authorizes a limited representation within a single subject matter, the very matter that brought the client to the lawyer.6 An injured client and a lawyer may agree, for example, that the lawyer will negotiate with an insurance company and will not file any lawsuit.7 An agreement of that kind circumscribes the engagement and sets the outer boundary of the lawyer’s responsibilities. The lawyer’s duties are then fixed at the start by terms the client accepted, instead of being inferred as the matter develops.
Comment 6 to Rule 1.2 illustrates three sources of limits:8
- A lawyer retained by an insurer may be limited to matters that fall within the insured’s coverage.
- A representation may be limited because the client’s own objectives for it are limited.
- The terms may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
Each illustration meets a practical need. The third serves both sides. A client on a budget can decline a step that costs more than it is worth, and a lawyer who finds a tactic repugnant or imprudent can still take on the matter on terms the lawyer can accept, instead of choosing between the whole engagement and none. A limit on objectives works differently, because it narrows the purpose of the work and not merely the tools. A business client, for example, may ask the lawyer to explore the legal consequences of a new strategy while reserving both the decision whether to carry it out and the right to retain a different lawyer for the next stage.9 That arrangement confines the lawyer’s objective to the advisory stage.
The limit need not be negotiated clause by clause during the relationship. When the client has been informed of the consequences and consents, the lawyer may specify the types of legal services to be provided or the matters within the representation. The limit may be set in the engagement contract or in terms of service that the client accepts.10
A limit narrows the lawyer’s work and leaves the duty to inform in place. A lawyer who negotiates with an insurer under a no-suit agreement may be tempted to think the agreement excuses any mention of court. It does not. The lawyer remains obliged to inform the client of the option of seeking legal redress in court, even if starting the litigation is left to the client or to another lawyer.11 The duty to inform the client fully before obtaining consent also means telling the client about other legal problems and options closely related to the representation.12 A client cannot sensibly agree to a boundary without knowing what lies beyond it.
Whether the client’s consent is adequate and whether the limit is reasonable are separate questions. The next two subsections take them in turn.
Informed Consent to Limits
Rule 1.2(c) lets a lawyer narrow an engagement only if the client gives informed consent, so the lawyer’s power rests on what the client understood and agreed to.14 Before entering a limited-scope representation, the lawyer must obtain that consent. Under Rule 1.0(e), the lawyer must ensure that the client appreciates the “material risks of and reasonably available alternatives to” the limitation.15 If the client lacks that appreciation, the condition the rule attaches to the lawyer’s power is unmet, and the narrowing has not been validly agreed.
The demand for disclosure follows from an information gap. A limited engagement is defined by what it leaves out, and a client without legal training often cannot see what has been left out. The lawyer must therefore communicate the nature of the limit clearly, so that the client knows what is, and even more important what is not, being provided in the way of legal services.16 A client can read a list of included tasks and still assume that the lawyer will handle whatever else arises.
The explanation has two kinds of content. The risks are the consequences of the boundary: if the insurer refuses to pay, nobody under the engagement is responsible for starting a suit. The alternatives are the other ways the client could proceed, such as a broader engagement at higher cost, a different lawyer for a later stage, or handling the next step alone. A client who hears only what the lawyer will do has received a boundary without a choice.
How much explanation suffices depends on the circumstances and on the client’s experience in legal matters. A person of sophistication and experience generally needs less. A person who has seldom or never used legal services, who is not well educated, or who otherwise shows a lack of understanding or confidence deserves a more thorough explanation.17 More generally, a lawyer making disclosures must act reasonably, taking into account the magnitude of the risks, the feasibility of the alternatives, and the sophistication of the client.18 A limit that could cost the client an entire claim therefore calls for fuller disclosure than one that drops a routine task.
The duty to explain reaches past the edge of the engagement. A lawyer need not provide services beyond the defined scope. When the lawyer is aware of other matters that are closely related, however, the duty to obtain informed consent includes notifying the client about them and warning of the possible loss of rights if other representation is not obtained.19 Limitations periods run whether or not anyone is watching them, and a client who agrees to a boundary without knowing that something valuable lies just beyond it has agreed to nothing about that thing.
In Nichols v. Keller, a lawyer undertook to represent an injured worker for the limited purpose of seeking workers’ compensation. The court ruled that such a lawyer should advise the client that a personal injury suit might be maintained against a third party responsible for the injury. The advice should include an explanation that failing to act in time could bar the suit under the statute of limitations, even though the lawyer has made clear that she will not represent the worker on any third-party claim.20 The limit stays in place. The lawyer must notify and warn, and need not file or manage the third-party claim.
Rule 1.2(c) itself asks for informed consent without specifying a form.21 The limit may be established through the engagement contract or through terms of service that the client accepts.22 A written description of the scope is the best practice: it states what the lawyer will do, what the lawyer will not do, and which related matters or deadlines the client should watch, and so it records both the boundary and the explanation behind it. The writing helps only if the conversation happened. In a malpractice suit, attention is likely to focus on whether the material risks and alternatives were actually disclosed, and a signed form does not answer that question by itself.23
Reasonable Under the Circumstances
Rule 1.2(c) makes reasonableness a condition of its own, separate from consent.25 Informed consent asks whether the client understood and agreed to the boundary. Reasonableness asks whether the boundary is one a lawyer may draw at all, however well the client understood it. A limitation becomes unreasonable if it effectively renders the lawyer’s advice unreliable or leaves the client unavoidably exposed to serious risks.26
Consent alone cannot do this work because of a weakness built into consent. A client agrees on the strength of the lawyer’s explanation, yet a client without legal training usually cannot judge how much a stripped-down service will leave out. If a signature were enough, a lawyer could offer advice too thin to rely on, and the client would absorb the loss without having seen it coming. Unreliable advice fails at the moment of reliance, when the client acts on an answer that looked complete and was not. Unavoidable exposure fails later, when a danger the narrowed engagement left unaddressed arrives and the client has no realistic way to meet it.
Comment 7’s illustration concerns time. Lawyer and client may agree that general advice on an uncomplicated legal problem will come through a simple telephone consultation, but the time allotted must be long enough that the information is complete enough for the client to rely on it.27 A call with an adequate window is an efficient format. The same call cut short hands the client an answer that sounds finished and is not.
The question about a telephone consultation is whether the time allowed matches the question asked, and the existence of a call does not decide it. The inquiry tightens in criminal matters. A lawyer may reasonably assist an otherwise self-represented civil client by handling discrete segments of the matter or preparing particular documents. In a criminal case, the nature of the case and the liberty interests at stake make it presumptively unreasonable to dissect the defense into pieces, for example by accepting the case on the understanding that the lawyer will do no investigation and file no pretrial motions.28 The parts of a defense depend on one another. Investigation finds the facts that pretrial motions rely on, and both shape whether the accused should plead or go to trial, so removing one piece weakens the rest in ways a layperson cannot see or repair alone.
Collaborative law practice is a limit that can be reasonable even though it removes litigation from the lawyer’s role. The lawyer’s representation is disqualified from continuing if the matter proceeds to litigation. Whether that limit is reasonable under the circumstances depends on the lawyer’s evaluation of the situation, a thoughtful consideration of the client’s needs, and a reasonable conviction that the collaborative process is likely to succeed. The client’s consent is informed only if the lawyer has explained the process, clarified the roles of the participants, contrasted the process with the traditional adversarial approach, fully informed the client of the alternatives including litigation, and described the consequences of the lawyer’s disqualification should the matter proceed to court.29
These examples show that reasonableness and consent are independent, and a limit can satisfy one and fail the other. The criminal engagement with no investigation had consent and lacked reasonableness. A sound collaborative arrangement entered without an explanation of disqualification has reasonableness and lacks informed consent. The rule joins the two conditions with “and,” so a failure of either leaves the lawyer without the power to limit the scope.30 The next subsection tests both conditions against unbundled services, where the limit is drawn deliberately.
Unbundled and Limited-Service Help
A full-service engagement bundles advice, drafting, filing, and courtroom advocacy. Unbundling lets a client buy only some of those pieces, such as a consultation or a drafted pleading, and handle the rest alone as a pro se litigant, a party who appears without a lawyer. Rule 1.2(c) is understood to permit this arrangement, provided the client gives informed consent and the scope of the representation is clearly defined.32 Many people cannot afford a full representation, and a narrow slice of professional help gives them something the all-or-nothing alternative would not.
The arrangement also carries risk for the lawyer. The lawyer remains obliged to ensure that any litigation document drafted, or any presentation made before a tribunal, pursues a valid, non-frivolous claim or argument.33 The lawyer is the only participant trained to judge whether a claim has a legitimate basis, and the litigant’s signature on a filing does not remove that obligation.
The same kind of engagement is proper when each condition is met.
A second difficulty appears only after a loss. When the litigant loses, the cause may lie in the lawyer’s drafting, in the litigant’s own advocacy, or in the plain weakness of the case on the merits, and untangling those strands can be a knotty endeavor.34 A clearly defined scope is the best protection, because an agreement that records who was to do what gives both sides a fixed reference point when blame is later assigned.
The fifth step reflects the fact that a person receiving a limited-scope representation is a client, even if the scope is narrow and discrete.37 A narrow engagement shrinks the tasks the lawyer has undertaken and leaves the person’s status untouched, so the lawyer must screen the engagement against the conflict-of-interest rules, which are taught elsewhere.
Model Rule 6.5 relaxes those rules in one setting: short-term limited representation under the auspices of a qualified pro bono program, such as a legal advice hotline. The conflict rules, and the imputed disqualification of the lawyer’s colleagues, apply only if the lawyer actually knows of a conflict when giving the advice or helping to complete forms.38 Under Rule 6.5(a)(1) and (a)(2), the lawyer may provide the service only if the lawyer does not know that the representation involves a conflict of interest and does not know that another lawyer in the firm is disqualified. The lawyer need not run an extensive conflicts screening before accepting the pro bono client, but may not ignore a conflict he is aware of, and must exercise some vigilance in verifying that the person is not adverse to a client of the lawyer or the firm.39 When the lawyer knows the person is adverse to a client of the lawyer or the firm, the lawyer must decline to give any advice or assistance and refer the person to another volunteer lawyer in the program. If the lawyer later agrees to continue representing the person, the conflict rules apply in full to the ongoing representation.40
The reasonableness requirement bends in the same setting. Advice-only and hotline programs often deliver incomplete help, which is justified by the view that some assistance is better than none. Comment 2 to Rule 6.5 strikes the balance this way: “[i]f a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel.”41 A lawyer who gives incomplete advice must say that it is incomplete, so that the caller does not mistake a few minutes of help for a full answer.
The two settings share a structure. Limited help is permitted because some help is better than none, the lawyer remains accountable for what the help contains, and the client must be told where the help stops.
Limits in Joint Representation
A scope limit also helps a lawyer who represents several clients at once. Under Rule 1.2(c), the lawyer and the clients may adopt reasonable limits on the scope of the representation, and here too the lawyer must obtain informed consent, ensuring that each client appreciates the “material risks of and reasonably available alternatives to” the limitation.44 A joint representation arises when one lawyer acts for two or more clients with a common objective, such as co-founders forming a company. A common objective does not mean identical interests. The clients usually agree on the goal and may still differ about terms, about who bears which responsibility, or about what happens if the venture fails. The danger is that those differences surface after the lawyer has promised each client undivided service, because a lawyer cannot give partisan help to both sides of a question on which they are opposed.
A scope limit contains that danger at its source. The clients might agree that the lawyer will not advise or represent either of them on potential claims they might have against each other. Or the lawyer might prepare documents recording the terms of a transaction the clients have agreed on, without advising them in their negotiation with each other over those terms.45 Each limit removes the work in which one client’s gain would be the other’s loss and keeps the work in which both want the same result. The logic follows from the baseline that a lawyer is responsible only for the matters the clients engaged the lawyer to handle.46 A matter excluded at the start generates no duty that could pull against the lawyer’s duty to the other client.
The consent must be informed, which here means that each client understands what the lawyer will disregard and what that costs. Issues that independent counsel might advocate for each client are disregarded in a representation limited to the clients’ common objective.47 On those issues nobody is acting as advocate for either client, so the lawyer must say plainly which issues and interests will be left unaddressed. A client who does not know what is being disregarded cannot decide whether to accept that cost.
Timing matters as much as content. In a dual representation, such as an employer and a non-citizen employee on a visa petition, disclosure and written consent can be accomplished on a single form. The lawyer should draft the form with care, tailor it to each client’s circumstances, and explain it to each client before signing.48 If a conflict or a confidentiality problem arises when the lawyer did not obtain written consent at the start, the lawyer may be forced to withdraw. The lawyer must withdraw from representing both clients if the lawyer cannot use independent judgment on behalf of each or cannot assure each that the client’s confidences will not be breached. Seeking consent once the conflict has appeared is possible in theory, but the duties of loyalty and confidentiality often make it nearly impossible.49 Consent obtained at the start, before any divergence of interest has appeared, avoids that trap.
A scope limit manages a conflict and does not erase it, so the exam trap runs in two directions. One error is to assume that narrowing the engagement removes the need for the clients’ informed consent, when the limit is valid only with that consent. The other is to assume that a signed limit makes the arrangement proper whatever the facts, when Rule 1.2(c) also requires the limit to be reasonable under the circumstances.50 The conflict rules themselves, and whether a particular joint representation may be undertaken at all, are taught elsewhere. This subsection supplies the scope limit’s role in that picture: it excludes the issues that would divide the lawyer’s loyalty.