Implied and Advance Authority

A lawyer cannot stop to ask permission for every step of a representation, and Rule 1.2(a) does not require it: the lawyer “may take such action on behalf of the client as is impliedly authorized to carry out the representation.”¹ The sentence applies the agency definition of authority, the power of an agent to affect the principal’s legal relations by acts done in accordance with the principal’s manifestations of consent.² A client manifests that consent in two ways that matter here. Retaining the lawyer for a stated goal yields implied authority, and instructing the lawyer ahead of time yields advance authority. In both cases the lawyer’s power reaches only as far as the client’s consent does.

Implied Authority

A landowner who retains a lawyer to negotiate the sale of a parcel supplies the standard illustration. When the lawyer finds a prospective buyer, she has to disclose something like “this land is for sale.” The duty of confidentiality protects that information. But the client’s objective is to sell, and telling a buyer is pretty clearly calculated to advance that objective, so the disclosure is impliedly authorized.³ The lawyer never asked and never had to, because the retention and the stated goal already conveyed the client’s consent.

The measure is the client’s objective. An act is impliedly authorized when, given what the client set out to achieve, the client would naturally be understood to have consented to it. Routine steps such as scheduling interviews and depositions fit the same pattern. A client who hires a litigator is understood to want what litigators do, and asking would tell the client nothing the client had not already conveyed.

Implied authority has an outer edge at the decisions that Rule 1.2(a) assigns to the client. The rule separately directs the lawyer to abide by the client’s decision whether to settle,⁴ so a lawyer who settles needs authority that traces to something the client did. A footnote in Koval v. Simon Telelect, Inc. shows how courts answer that question. It describes Nature Corp. v. Aquatic Renovation Systems Inc., 987 F. Supp. 695 (S.D. Ind. 1997), where an attorney entered into a settlement agreement that the client challenged on the ground that the attorney lacked authority. The court held that the facts before it showed the client had conferred implied authority on the attorney to settle, and the Indiana Supreme Court observed that its own answer to the certified question in Koval was consistent with that result.⁵ The court looked to the facts to see what the client had conferred.

The same footnote sharpens what implied authority means. Authority results from an act of the client, while power results from the agency relation itself, and implied authority, unlike apparent authority, is “authority which the principal intended that the agent should have.”⁶ Between lawyer and client, then, the inquiry asks what the client intended the lawyer to have, not how the lawyer’s role appears to someone else. On an exam, begin there: what did this client convey by retaining the lawyer and stating a goal?

Advance Authority and Revocation

A client may also tell the lawyer in advance how to act. The Restatement of the Law Governing Lawyers provides that the client and lawyer “may agree which of them will make specified decisions” and that the “client may instruct a lawyer during the representation.”⁸ An instruction is a manifestation of consent like any other, so a lawyer who acts within it acts with authority and need not call the client each time.⁹ Clients give such instructions for practical reasons: some will be unreachable when a decision arrives, and others do not want a call for every step. An instruction can even settle a matter the rule reserves to the client, because the client has then made the decision itself.

Advance authority has two limits. The first is legal. The lawyer “is not required to carry out an instruction that the lawyer reasonably believes to be contrary to professional rules or other law,” and if the client persists in a wrongful instruction, the lawyer would need to withdraw.¹⁰ The second comes from the definition of authority. An instruction manifests consent to what the client had in view when giving it. When circumstances change materially, it no longer shows what the client would consent to, and the lawyer must return to the client before acting. As to the means of the representation, Rule 1.2(a) already requires the lawyer to consult the client, as Rule 1.4 requires.¹¹

Hypothetical Illustration

A plaintiff, about to leave for two weeks of backcountry travel, tells the lawyer in writing to accept any settlement offer of at least $200,000. While the plaintiff is out of reach, the defendant offers $210,000. The offer falls inside the instruction and nothing about the case has changed, so the lawyer may accept. The client made the settlement decision in advance, and the lawyer is carrying it out.

A second plaintiff gives the same written instruction. A week later the defendant’s key witness recants in a sworn statement, which raises the value of the case well above $200,000. When the defendant then offers $200,000, the lawyer cannot rely on the old instruction. The client chose that figure before the recantation and has not decided anything about the case as it now stands, so the lawyer must tell the client what has happened and ask.

Authority also lasts only as long as the client’s consent. Because authority is the power to act in accordance with the principal’s manifestations of consent, a client who withdraws consent leaves the lawyer without the power the earlier instruction supplied.¹² The rule has to run this way. A client who could not withdraw a standing instruction would have lost control of the matter, and Rule 1.2(a) allocates decisions precisely to keep that control with the client. Nothing in the definition requires a writing. Suppose the first plaintiff above reaches a phone and tells the lawyer to hold out for $250,000. An acceptance of $210,000 afterward falls outside the lawyer’s authority, even though the written instruction still sits in the file.