Limits and Disagreements

Rule 1.2(a) begins with a qualifier the earlier sections left in the background: “Subject to paragraphs (c) and (d),” the lawyer abides by the client's decisions on objectives and consults the client about the means of pursuing them.¹ The ends-means division, the lawyer's implied authority, and the four decisions reserved to the client all describe the ordinary engagement. Three situations take a problem outside it: the parties narrowed the engagement at the start, the client's goal reaches conduct a lawyer may not assist, or lawyer and client disagree about how to proceed. The first step in any who-decides problem is to ask whether the facts have reached one of these three.

Each has its own source. An agreed limit works through agency law, because a lawyer's authority is the power to affect the client's legal relations by acts done in accordance with the client's manifestations of consent, so what the client consents to at the outset sets how much power the lawyer holds.² The crime-or-fraud limit comes from paragraph (d), which marks where the client's say over objectives ends. The disagreement rules come from the structure of paragraph (a) itself, which requires the lawyer to consult the client about means without requiring the lawyer to submit.³

Limiting the Scope

Rule 1.2(c) lets lawyer and client shape an engagement before the work begins: a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.⁴ A limit narrows the job, either by restricting the objectives the lawyer has undertaken or by excluding particular means of pursuing them. Agency law explains why a narrower job also means narrower power. Authority is the power to act in accordance with the principal's manifestations of consent, so a client who consents only to a limited job has conferred power only for that job.⁵

The rule sets two conditions, and each answers a different risk. Reasonableness polices the content of the bargain: a limit does not become acceptable merely because the client agreed to it. Informed consent polices the process, because a client who agrees to go without something cannot meaningfully accept the loss without understanding it, and the lawyer, who knows what a task requires, carries the duty to explain. In collaborative law, for example, the lawyer must explain the process, clarify the roles of the participants, contrast the process with the traditional adversarial approach, inform the client fully of the alternatives including litigation, and describe the consequences of the lawyer's disqualification from continued representation should the matter go to litigation.⁶ The same questions (what is excluded, what the alternatives are, and what the exclusion may cost) are worth answering in any limited engagement.

A limit may take either of the forms the earlier sections separated. Comment 6 to Rule 1.2 recognizes that a limited representation may be appropriate because the client has limited objectives, and that the terms of the engagement may exclude specific means that might otherwise be used to accomplish the client's objectives.⁷ A client who wants an opinion on one lease clause has limited the objective. A client who decides in advance to avoid litigation has excluded a means, and a collaborative-law engagement embodies exactly that decision: the lawyer's role is confined to reaching a settlement, and the lawyer is disqualified from continuing if the matter proceeds to litigation.⁸ Whether the arrangement is reasonable for a particular client depends on the lawyer's evaluation of the situation, careful consideration of the client's needs, and a reasonable conviction that the collaborative process is likely to succeed.⁹

Does the client's signature end the inquiry? A signed engagement letter is the prudent way to record what the client agreed to and what the client was told, since a later dispute about scope can then be settled by the document. An exam stem that stresses that the client read the agreement and understood it nevertheless invites the wrong answer, because the two conditions are cumulative. A limit that fails the reasonableness condition stays invalid however well the client understood it.

Professor Stephen Gillers states the point plainly: “it would be unreasonable to accept the defense of a criminal case on the understanding that the lawyer will not do any investigation or make any pretrial motions.”¹⁰ Helping a pro se civil litigant with discrete segments of a matter, or by preparing certain documents, may be a reasonable limitation on scope. The nature of a criminal case and the liberty interests at stake, however, make it presumptively unreasonable for a lawyer to agree to dissect a criminal defense into pieces.¹¹ The technique of narrowing the job is therefore acceptable where the client's exposure is bounded, and presumptively unacceptable where the client's liberty is at stake.

That last consequence applies the agency rule again. The client consented only to the negotiating job, so a lawsuit requires a new manifestation of consent, in the form of an expanded engagement. A valid limit therefore does two things at once: it defines what the lawyer must do, and it marks where the lawyer's power to act for the client stops.

Crime or Fraud Limit

Rule 1.2(d) marks the outer edge of the client's authority over objectives. A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but the lawyer may discuss the legal consequences of any proposed course of conduct and may counsel or assist a client in a good faith effort to determine the validity, scope, meaning, or application of the law.¹³ This is the paragraph to which Rule 1.2(a) defers when it begins “Subject to paragraphs (c) and (d),” so the lawyer's duty to abide by the client's objectives carries a built-in exception.¹⁴ When a client's goal looks questionable, the first question on any stem is whether the exception has been reached.

The deference exists, as Professors Hazard and Hodes and attorney Jarvis explain, because the lawyer “shall abide” by the client's desires about objectives, “because realization of those objectives is the very reason the client-lawyer relationship was established in the first place.”¹⁵ Paragraph (d) supplies the exception. A client who asks for help committing a crime or fraud is asking for a participant, and the consequences of agreeing reach well beyond discipline. A drafter who correctly advises that a transaction violates the criminal law and then drafts the necessary papers is liable as an accomplice or coconspirator, and taking part in fraud can make the drafter liable in damages to the injured parties.¹⁶

The drafter's role does not change that result. A lawyer who knows goods are stolen cannot draft the contract of sale for them, and the defense that the lawyer merely put the parties' terms on paper was rejected centuries ago.¹⁷ The paper is how the sale is carried out, so preparing it is the assistance. “Mere scrivener” describes the lawyer's task and says nothing about the lawyer's responsibility for how the paper is used. A stem that stresses that the client dictated every term, or that the lawyer neither took the goods nor shared the price, adds nothing to the analysis, because the rule asks only whether the lawyer assisted conduct the lawyer knew to be criminal or fraudulent.

The rule prohibits two acts and turns on one state of mind. To counsel is to urge the conduct, and to assist is to help carry it out, as a drafter does by preparing the documents; the state of mind is knowledge. Between plainly lawful and plainly illegal conduct lies a gray area, and the profession is not of one mind about it. Many hold that good advice there means being willing to make judgments and, in the end, to advise against the conduct.¹⁸ For fraud, a workable test is whether the lawyer would be helping the client misrepresent information in an effort to take someone's money or property. If so, lawyer and client both face liability, and a lawyer who fails to explain that prospect does the client a disservice.¹⁹

The rule does not tell a lawyer to avoid every plan that might prove unlawful. Its second half protects the very work a client's question “is this legal?” calls for.

Hypothetical Illustration

A client selling a business asks whether an unusual deal structure complies with an ambiguous regulation. The lawyer studies the provisions, explains what each reading would mean for the client, describes the consequences if a regulator disagrees, and helps the client build the deal around the best-supported reading. Everything the lawyer has done is discussion of legal consequences and good faith testing of the law, which the rule expressly permits.

In the same sale, the client then tells the lawyer to prepare a disclosure schedule that omits known debts so the buyer will pay more. The lawyer now knows the conduct is fraudulent, because the schedule would misrepresent information to take the buyer's money. Preparing it would assist the fraud, and the client's instruction cannot supply a power the rule withholds.

The permission to discuss consequences preserves the lawyer's most valuable function, which is helping the client see the risk and choose the lawful path. If merely talking through a risky plan counted as assisting it, lawyers would avoid hard questions, and clients would lose their one source of candid advice. A lawyer who advises against a fraudulent transaction also protects the client from liability by steering the client away from it, and when the client will not be steered, the lawyer has an ethical obligation to withdraw rather than participate.²⁰

Exam Analysis Steps

Because the limit turns on what the lawyer knows and what the lawyer is being asked to do, run it in this order:

Identify what the client wants the lawyer to do, and ask whether that conduct is criminal or fraudulent, including whether the lawyer would be helping the client misrepresent information to take someone's money or property.
Ask whether the lawyer actually knows the conduct is criminal or fraudulent. Knowledge triggers the prohibition, and in a gray area the better counsel, in the view of many, is to make a judgment and advise against the conduct.
If the lawyer knows, ask whether the contemplated act would counsel the conduct or assist it, as drafting the necessary papers would, and disregard any claim that the lawyer was a mere scrivener.
If what remains is discussing legal consequences or helping the client test the validity, scope, meaning, or application of the law in good faith, treat it as permitted. If the client insists on the unlawful course, the lawyer must withdraw rather than participate.

The second step usually decides the problem, because the stems place their facts at the line between suspicion and knowledge. The third step answers the temptation to treat clerical or drafting work as harmless.

Disagreements Over Means

Rule 1.2(a) leaves the lawyer with authority over means, but not with silent authority: the lawyer must consult the client about the means, as Rule 1.4 requires.²² The rule “essentially adopts an ends-means division,” and it requires consultation with the client without requiring submission to the client.²³ The design guarantees that some disagreements will survive the conversation, so the allocation needs a way to end an impasse that neither side can win by force. It supplies one in stages: consultation, then an exit for a fundamental disagreement, then a separate rule for instructions the lawyer may not carry out.

The line between ends and means is imperfect. Not every matter that arises in a representation falls neatly on one side, and no better line has been found that could be enforced as a disciplinary rule. Consultation makes up the difference, because it keeps the client informed about how the representation is proceeding and gives the client a chance to object.²⁴ The parties can also reduce friction in advance. The Restatement of the Law Governing Lawyers adds 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.”²⁵

The first stage is a genuine consultation, conducted with the aim of reaching agreement. A drafter who thinks a transaction should be structured differently from the way the client wants it should discuss the matter with the client and should not ignore the client's wishes.²⁶ Clients often hold reasons the lawyer cannot see, and a lawyer who explains a concern may either persuade the client or learn something that changes the lawyer's own view. Most disagreements end here.

When consultation fails and the disagreement is fundamental, each side has an exit. The client ordinarily retains the ultimate power to control the relationship by discharging, or threatening to discharge, the lawyer, and the lawyer ordinarily may withdraw if there is a fundamental disagreement with the client.²⁷ Each exit answers a problem the other cannot. The lawyer cannot compel the client to keep the lawyer on the case, and the client cannot compel the lawyer to carry out a plan the lawyer finds unacceptable, so neither side can enforce its view by force. Discharge fits the agency definition of authority as power tied to the principal's manifestations of consent: a client who withdraws consent withdraws the power.²⁸

Does the lawyer's freedom to decline depend on how strongly the lawyer disagrees? It depends on what the client is asking for. According to the comment to the Restatement, a lawyer is not required to carry out an instruction the lawyer reasonably believes to be contrary to the professional rules or other law, and a lawyer whose client persists in a wrongful instruction would need to withdraw.²⁹ That rule fits the limits studied above, since Rule 1.2(a) itself operates subject to paragraphs (c) and (d).³⁰ The word reasonably matters. A lawyer's discomfort or caution is not enough, because the belief must rest on the rules or the law and not on the lawyer's taste.

In both scenes a client demands something the lawyer will not do, and the outcomes differ because of the character of the instruction. The discovery tactic was lawful, so the lawyer's exit was a permission tied to the depth of the disagreement. The call to a represented party was wrongful, so the lawyer's refusal rested on the rules themselves, and the client's persistence made withdrawal obligatory.

Exam Analysis Steps

Because the right exit depends on what the client is asking for and how far consultation has gone, run a disagreement stem in this order:

Confirm that the disputed matter is a means decision for the lawyer after consultation, since objectives and the decisions reserved to the client follow different rules.
Check that the lawyer consulted the client about the means and tried to reach agreement, the required first move and the one that ends most disagreements.
Ask whether the client's instruction is lawful and consistent with the professional rules, since the lawyer may decline only an instruction the lawyer reasonably believes is contrary to the rules or other law.
If the instruction is lawful and the disagreement is fundamental, conclude that the lawyer may withdraw and the client ordinarily may discharge the lawyer. If the instruction is wrongful and the client persists, conclude that the lawyer must withdraw.

The third step does the real work, because stems usually hold the client's insistence constant and vary only whether the thing demanded is lawful. A lawyer who is merely unhappy has the exits of withdrawal and discharge. A lawyer who faces a wrongful instruction may decline it, and the freedom to decline becomes a duty to withdraw once the client persists.