Concept
The Lawyer as Agent
Actual authority: allocation of decisions between client and lawyer
Client and Lawyer Decision Authority
The Lawyer as Agent
Legally, a client and a lawyer stand as principal and agent, and every rule in this reading about who decides what grows out of that fact.1 Agency law defines authority as the agent's power to affect the principal's legal relations by acts done in accordance with the principal's manifestations of consent to the agent.2 The definition measures the lawyer's power by what the client has conveyed. It does not measure it by the lawyer's title, training, or opinion of what would serve the client best. What the client has not conferred, the lawyer lacks. Settlement shows the point most clearly: unless the client has given the lawyer authority to make settlement decisions, the lawyer cannot make them.3
A manifestation of consent is something the client has communicated or shown, in words or in conduct. Actual authority is the power that results, and it reaches the lawyer by two routes. The client may confer it expressly, through an engagement letter or an instruction that names the task. The client may also confer it by fair implication, which is why Rule 1.2(a) lets a lawyer take "such action on behalf of the client as is impliedly authorized to carry out the representation."4 The court in Ackerman v. Sobol Family Partnership, LLP was deciding a question of apparent authority, but it borrowed the Restatement (Third)'s account of what a manifestation is: "conduct by a person, observable by others, that expresses meaning."5 Apparent authority itself, meaning whether a client's conduct toward outsiders binds the client, belongs to a separate reading. The borrowed definition still gives a useful working picture. A manifestation is something observable, not a wish the client kept to herself.
The same retention supports the discovery steps and fails to support the release, and that contrast tells you where to look. An exam stem that says only that the client hired the lawyer has supplied no manifestation about the disputed act. Ask what the client said or did about that particular act, and whether those words and that conduct fairly cover it.
Agency law ties power to the principal's own manifestations because the person whose rights will be altered should control whether and how they are altered. If an agent could widen the job just by announcing a wider job, the principal's control would exist only on paper. A rule that fixes the allocation of decisions in advance spares both sides from rediscovering the boundary in the middle of a dispute.
Rule 1.2(a) is the professional-responsibility layer built on this agency default. It directs the lawyer to abide by the client's decisions about the objectives of the representation and to consult the client about the means, as Rule 1.4 requires. It permits the lawyer to take impliedly authorized action. It also requires the lawyer to abide by the client's decision whether to settle and, in a criminal case, the client's decisions on the plea, on waiving a jury, and on whether the client will testify.6 Each of those commands marks something the client has not handed over, or has handed over only in part. The Rules govern the relationship between lawyer and client as between the two. They do not set out the full parameters of the lawyer's ability to bind the client in dealings with third parties, which turn on apparent authority and inherent agency power.7 The sections below stay with the client-lawyer allocation and take Rule 1.2(a) apart piece by piece.