Lawyer Chooses Means

Lawyer Chooses Means

Rule 1.2(a) divides authority by function: the client decides the objectives, and the lawyer decides how to pursue them. The verbs mark the line. A lawyer “shall abide by” the client’s decisions on objectives but, as Rule 1.4 requires, only “shall consult” with the client about the means.¹ Consultation is not submission. The Rule requires the lawyer to consult the client on means and does not require the lawyer to yield to the client’s view.² Apart from the fundamental decisions the Rule reserves to the client, the lawyer takes professional responsibility for conducting the case, after consulting the client.³

The division solves a design problem. A disciplinary rule must respect the client’s autonomy on matters of singular importance to the client, and it must also protect the lawyer from being second-guessed when exercising the professional expertise the lawyer brings to a legal problem. Because crossing the line between the two can ground discipline, the line must be drawn in a reasonably objective way.⁴ Ends and means supply that line. It is imperfect, since not every matter that arises in a representation sorts neatly into one category, but no better delineation that can be enforced as a disciplinary rule has been found.⁵

Means are the technical, legal, and tactical choices through which an objective is pursued, and clients ordinarily defer to the lawyer’s skill on them.⁶ In civil litigation they include how to frame a pleading, how to conduct discovery, whether to file dispositive motions, and which claims or defenses to emphasize. In a criminal defense they include how to present exhibits, which witnesses to call, and when to object to the prosecutor’s questions and, just as important, when to let a question pass.⁷ These choices call on the lawyer’s professional expertise, so they are the choices the Rule shields from client second-guessing.

The same allocation governs a criminal appeal. In Jones v. Barnes, appellate counsel consulted the convicted client but pressed only the issues counsel judged strongest, omitting others the client insisted on raising. The Court held that a criminal defendant has no constitutional right to have appellate counsel raise every nonfrivolous issue the defendant requests.⁸ Choosing among issues is itself a skill of advocacy, because a brief that presses every point risks burying the strongest ones.⁹ The opinion quotes the then-proposed Model Rule 1.2(a) and notes that, apart from the specified fundamental decisions, counsel’s duty is to take professional responsibility for the conduct of the case after consulting the client. It also notes the respondent’s reliance on ABA appellate standards that appear to favor accommodating the client’s insistence.¹⁰ The holding itself is constitutional. Jones therefore illustrates the Rule’s allocation without construing the Rule, and an answer about Rule 1.2(a) should not call it a disciplinary-rule holding.

The duty to consult is real, but its measure is flexible. Rule 1.4(a)(2) requires reasonable consultation about the means, and what is reasonable depends on the time available, the setting, and how much the matter is likely to matter to the client.¹¹ The duty therefore does not reach trivial matters, and it yields when consultation is not feasible. In the middle of a trial the lawyer cannot stop to explain the hearsay rule and its exceptions before deciding whether to object, because by the time the explanation ended the moment to object would have passed.¹² Where consultation does occur, it keeps the client informed about how the case is proceeding and gives the client a chance to object.¹³ An objection is information the lawyer weighs, and the lawyer need not use a particular measure simply because the client wishes it.¹⁴

Must the lawyer clear every witness with the client? Ordinarily no, because identifying witnesses is a legal means. The line between ends and means blurs, however, and the allocation shifts with the stakes. As a decision becomes more central to the client’s interests, it takes on an end-like character, and most clients would not want the lawyer to act alone where a step carries significant risk, substantial expense, or the potential for serious harm to third persons.¹⁵ A client who does not want a young child subjected to examination and cross-examination is voicing a concern for a third person’s welfare. That concern moves the witness decision toward the objectives of the representation and calls for the client’s agreement, not just a conversation.¹⁶ The lawyer’s choice among the other witnesses in that same case remains a means and remains the lawyer’s.

Outside litigation the allocation is the same. A drafter has more discretion and responsibility in choosing the most effective means, and many clients leave the structure of a transaction to the drafter entirely. If the client wants a transaction structured in a particular way and the drafter thinks another structure would better achieve the objective, the drafter should discuss the matter with the client and should not ignore the client’s wishes.¹⁷ Discussion serves both sides of the division: the client may have reasons the drafter does not know, and the drafter’s expertise reaches the client as advice rather than as a unilateral override. The decisions Rule 1.2(a) reserves to the client, however technical they may seem, are taken up in a later section.