Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › CLIENT-LAWYER RELATIONSHIP › Rule 1.2 - Scope of Representation and Allocation of Authority Between Client and Lawyer

Current through Register Vol. 54, No. 28, July 13, 2024
(a) Subject to
						paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning
						the objectives of representation and, as required by Rule
						1.4, shall consult with the
						client as to the means by which they are to be pursued. A lawyer may take such
						action on behalf of the client as is impliedly authorized to carry out the
						representation. A lawyer shall abide by a client's decision whether to settle a
						matter. In a criminal case, the lawyer shall abide by the client's decision,
						after consultation with the lawyer, as to a plea to be entered, whether to
						waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client,
						including representation by appointment, does not constitute an endorsement of
						the client's political, economic, social or moral views or
						activities.
(c) A lawyer may limit
						the scope of the representation if the limitation is reasonable under the
						circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to
						engage, or assist a client, in conduct that the lawyer knows is criminal or
						fraudulent, but a lawyer may discuss the legal consequences of any proposed
						course of conduct with a client and may counsel or assist a client to make a
						good faith effort to determine the validity, scope, meaning or application of
						the law.
(e) A lawyer may counsel
						or assist a client regarding conduct expressly permitted by Pennsylvania law,
						provided that the lawyer counsels the client about the legal consequences,
						under other applicable law, of the client's proposed course of conduct.
Comment:
Scope of Representation Allocation of Authority
						  between Client and Lawyer
(1)
						Paragraph (a) confers upon the client the ultimate authority to determine the
						purposes to be served by legal representation, within the limits imposed by law
						and the lawyer's professional obligations. The decisions specified in paragraph
						(a), such as whether to settle a civil matter, must also be made by the client.
						See Rule 1.4(a)(1) for
						the lawyer's duty to communicate with the client about such decisions. With
						respect to the means by which the client's objectives are to be pursued, the
						lawyer shall consult with the client as required by Rule
						1.4(a)(2) and
						may take such action as is impliedly authorized to carry out the
						representation.
(2) On occasion,
						however, a lawyer and a client may disagree about the means to be used to
						accomplish the client's objectives. Clients normally defer to the special
						knowledge and skill of their lawyer with respect to the means to be used to
						accomplish their objectives, particularly with respect to technical, legal and
						tactical matters. Conversely, lawyers usually defer to the client regarding
						such questions as the expense to be incurred and concern for third persons who
						might be adversely affected. Because of the varied nature of the matters about
						which a lawyer and client might disagree and because the actions in question
						may implicate the interests of a tribunal or other persons, this Rule does not
						prescribe how such disagreements are to be resolved. Other law, however, may be
						applicable and should be consulted by the lawyer. The lawyer should also
						consult with the client and seek a mutually acceptable resolution of the
						disagreement. If such efforts are unavailing and the lawyer has a fundamental
						disagreement with the client, the lawyer may withdraw from the representation.
						See Rule 1.16(b)(4).
						Conversely, the client may resolve the disagreement by discharging the lawyer.
						See Rule 1.16(a)(3).
(3) At the
						outset of a representation, the client may authorize the lawyer to take
						specific action on the client's behalf without further consultation. Absent a
						material change in circumstances and subject to Rule
						1.4, a lawyer may rely on such an
						advance authorization. The client may, however, revoke such authority at any
						time.
(4) In a case in which the
						client appears to be suffering diminished capacity, the lawyer's duty to abide
						by the client's decisions is to be guided by reference to Rule
						1.1 4.
Independence from Client's Views or
						  Activities
(5)
						Legal representation should not be denied to people who are unable to afford
						legal services, or whose cause is controversial or the subject of popular
						disapproval. By the same token, representing a client does not constitute
						approval of the client's views or activities.
Agreements Limiting Scope of
						  Representation
(6)
						The scope of services to be provided by a lawyer may be limited by agreement
						with the client or by the terms under which the lawyer's services are made
						available to the client. When a lawyer has been retained by an insurer to
						represent an insured, for example, the representation may be limited to matters
						related to the insurance coverage. A limited representation may be appropriate
						because the client has limited objectives for the representation. In addition,
						the terms upon which representation is undertaken may exclude specific means
						that might otherwise be used to accomplish the client's objectives. Such
						limitations may exclude actions that the client thinks are too costly or that
						the lawyer regards as repugnant or imprudent.
(7) Although this Rule affords the lawyer and
						client substantial latitude to limit the representation, the limitation must be
						reasonable under the circumstances. If, for example, a client's objective is
						limited to securing general information about the law the client needs in order
						to handle a common and typically uncomplicated legal problem, the lawyer and
						client may agree that the lawyer's services will be limited to a brief
						telephone consultation. Such a limitation, however, would not be reasonable if
						the time allotted was not sufficient to yield advice upon which the client
						could rely. Although an agreement for a limited representation does not exempt
						a lawyer from the duty to provide competent representation, the limitation is a
						factor to be considered when determining the legal knowledge, skill,
						thoroughness and preparation reasonably necessary for the representation. See
						Rule 1.1.
(8) All agreements concerning a lawyer's
						representation of a client must accord with the Rules of Professional Conduct
						and other law. See, e.g., Rules 1.1, 1.8 and 5.6.
Criminal, Fraudulent and Prohibited
						  Transactions
(9)
						Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a
						client to commit a crime or fraud. This prohibition, however, does not preclude
						the lawyer from giving an honest opinion about the actual consequences that
						appear likely to result from a client's conduct. Nor does the fact that a
						client uses advice in a course of action that is criminal or fraudulent of
						itself make a lawyer a party to the course of action. There is a critical
						distinction between presenting an analysis of legal aspects of questionable
						conduct and recommending the means by which a crime or fraud might be committed
						with impunity.
(10) When the
						client's course of action has already begun and is continuing, the lawyer's
						responsibility is especially delicate. The lawyer is required to avoid
						assisting the client, for example, by drafting or delivering documents that the
						lawyer knows are fraudulent or by suggesting how the wrongdoing might be
						concealed. A lawyer may not continue assisting a client in conduct that the
						lawyer originally supposed was legally proper but then discovers is criminal or
						fraudulent. The lawyer must, therefore, withdraw from the representation of the
						client in the matter. See Rule
						1.16(a). In some
						cases, withdrawal alone might be insufficient. It may be necessary for the
						lawyer to give notice of the fact of withdrawal and to disaffirm any opinion,
						document, affirmation or the like. See Rule 4.1.
(11) Where the client is a fiduciary, the
						lawyer may be charged with special obligations in dealings with a
						beneficiary.
(12) Paragraph (d)
						applies whether or not the defrauded party is a party to the transaction.
						Hence, a lawyer must not participate in a transaction to effectuate criminal or
						fraudulent avoidance of tax liability. Paragraph (d) does not preclude
						undertaking a criminal defense incident to a general retainer for legal
						services to a lawful enterprise. The last clause of paragraph (d) recognizes
						that determining the validity or interpretation of a statute or regulation may
						require a course of action involving disobedience of the statute or regulation
						or of the interpretation placed upon it by governmental authorities.
(13) If a lawyer comes to know or reasonably
						should know that a client expects assistance not permitted by the Rules of
						Professional Conduct or other law or if the lawyer intends to act contrary to
						the client's instructions, the lawyer must consult with the client regarding
						the limitations on the lawyer's conduct. See Rule
						1.4(a)(5).