Reporter's Explanation of Changes
TEXT:
1. Modify caption
The caption has been amended to more accurately describe the subjects addressed by the Rule.
2. Paragraph (a): Move "subject to paragraphs (c) and (d)" to beginning of paragraph (a)
The phrase "subject to paragraphs (c) and (d)" has been moved to clarify that all of the actions a lawyer may take pursuant to paragraph (a) are properly subject to the restrictions of paragraph (d) and some of them may be subject to the limitation in paragraph (c). In the current Rule, the limitations of paragraphs (c) and (d) only apply to the lawyer's obligation to abide by the client's decisions concerning the representation.
3. Paragraph (a): Modify to require consultation about means "as required by Rule1.4"
The Commission recommends the addition of a cross-reference to Rule 1.4, which requires a lawyer to "reasonably consult with the client about the means by which the client's objectives are to be accomplished." The Commission believes that the current formulation is flawed because it might be read to always require consultation before the lawyer takes action. These changes also reflect the Commission's decision that the lawyer's duty to communicate with the client should be addressed in Rule 1.4 rather than in Rule 1.2.
4. Paragraph (a): Add sentence acknowledging lawyer's implied authority to take action to carry out representation
The Commission believes that current paragraph (a) is flawed because the reference to the lawyer's duty to consult about means can be read to imply that the lawyer always must consult in order to acquire authority to act for the client. The Commission has added a sentence to clarify that "A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation" and has added a new Comment [2] that addresses the resolution of disagreements with clients about the means to be used to accomplish the client's objectives. The new sentence in paragraph (a) parallels the reference in Rule 1.6(a) to the lawyer's implied authority to reveal information relating to the representation. The scope of the lawyer's implied authority is to be determined by reference to the law of agency. The Commission believes that this formulation strikes the right balance between respect for the lawyer's expertise and the preservation of the client's autonomy by allowing the lawyer to exercise professional discretion on behalf of the client, subject to consultation with the client as required by Rule 1.4(a)(2), but leaving open the possibility that a client might revoke such implied authority.
5. Paragraph (a): No general duty to abide by client instructions
Other than acknowledging the power of the client to revoke a lawyer's implied authority, the Commission has not attempted to specify the lawyer's duties when the lawyer and client disagree about the means to be used to accomplish the client's objectives. As explained in Comment [2], the Commission believes that disagreements between a lawyer and client about means must be worked out by the lawyer and client within a framework defined by the law of agency, the right of the client to discharge the lawyer and the right of the lawyer to withdraw from the representation if the lawyer has a fundamental disagreement with the client.
6. Paragraph (a): Replace "whether to accept an offer of settlement" with "whether to settle"
The reference in the current Rule to "accept an offer of settlement" is under-inclusive because it does not include making a settlement offer.
7. Paragraph (c): Permitting "reasonable" limitations on the "scope" of a lawyer's representation
The Commission recommends that paragraph (c) be modified to more clearly permit, but also more specifically regulate, agreements by which a lawyer limits the scope of the representation to be provided to a client. Although lawyers enter into such agreements in a variety of practice settings, this proposal in part is intended to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel.
a. Replace "objectives of the representation" with "scope of the representation"
The Commission has replaced the current reference to limiting the "objectives of the representation" with limiting the "scope of the representation." Only the client can limit the client's objectives. As indicated in Comment [6], the scope of a representation may be limited either by limiting the subject matter for which the lawyer will assume responsibility or the means the lawyer will employ.
b. Add requirement that limitation be "reasonable under the circumstances"
Unlike the current Rule, proposed paragraph (c) specifically precludes a limited representation that would not be "reasonable under the circumstances." Comment [7] discusses this limitation. In cases in which the limitation is reasonable, the client must give informed consent as defined in Rule 1.0(e). Because a useful limited representation may be provided over the telephone or in other situations in which obtaining a written consent would not be feasible, the proposal does not require that the client's informed consent be confirmed in writing. Comment [8], however, reminds lawyers who are charging a fee for a limited representation that a specification of the scope of the representation will normally be a necessary part of the lawyer's written communication with the client pursuant to Rule 1.5 (b).
c. Replace "consents after consultation" with "gives informed consent"
The Commission is recommending that throughout the Rules the phrase "consent after consultation" be replaced with "gives informed consent," as defined in Rule 1.0(e). No substantive change is intended.
8. Delete paragraph (e)
The Commission recommends that the substance of paragraph (e) be placed in a new paragraph (a)(5) in Rule 1.4. Comment [14] will serve as a cross-reference to Rule 1.4. The change is consistent with the Commission's recommendation that the lawyer's duty to communicate with the client be addressed in Rule 1.4 with appropriate cross-references in the Comment to Rule 1.2.
COMMENT:
Caption The current caption does not accurately describe Comments [1] - [3], which relate to the allocation of decision-making authority between lawyer and client.
[1] Current Comment [1] has been modified to reinforce the three main points in paragraph (a) and to provide appropriate cross-references to Rule 1.4(a)(1) and (a)(2). The second to the last sentence in current Comment [1] has been incorporated into Comment [2].
[2] Comment [2] is new and addresses the situation in which lawyer and client disagree about the means to be used to accomplish the client's objectives. The Comment explains why Rule 1.2 leaves such disagreements to be resolved by the lawyer and client with reference to the law of agency, the right of the client to discharge the lawyer and the right of the lawyer to withdraw in the event of a fundamental disagreement with the client.
[3] Comment [3] is new and recognizes the legitimacy of the lawyer's reliance on advance authorization from the client. It also specifies that an advance authorization can be revoked by the client and that such an authorization will not be considered effective if there has been a material change in circumstances.
Caption The caption has been modified to reflect the change to paragraph (c).
[6] Paralleling changes to paragraph (c), current Comment [4] has been modified to explain that a client's decision to seek limited objectives may be relevant to determining the reasonableness of a limitation on the scope of the representation under the circumstances. Cost has been added as a factor that might justify limitation.
[7] This new Comment explains the requirement in paragraph (c) that a limitation on the scope of a representation must be reasonable under the circumstances. It also explains the relationship between a limitation on the scope of a representation and the lawyer's duty of competence under Rule 1.1.
[8] This new Comment alerts the lawyer who is charging a fee for a limited representation that a specification of the scope of the representation will normally be a necessary part of the lawyer's written communication with the client pursuant to Rule 1.5(b).
[9] The Commission has modified current Comment [5] to serve as a general reminder that all agreements between lawyers and their clients must conform with the Rules of Professional Conduct. No change in substance is intended.
[10] The Commission has made minor editorial changes to current Comment [6]. No change in substance is intended.
[11] The Commission has added language to current Comment [7] to provide more guidance to lawyers about what they must do to avoid assisting a client to commit a crime or fraud. Also added is a cross-reference to Rule 4.1, which specifies a lawyer's duties in circumstances in which remaining silent will assist a client to commit a crime or fraud. No change in substance is intended.
[13] Current Comment [9] has been modified to eliminate the ambiguous reference to a "sham" transaction and to replace "should" with "must." This provides a more precise example of a situation in which a lawyer will violate Rule 1.2(d) even though the defrauded person is not a party to the transaction.
[14] New Comment [14] has been added to provide a cross-reference to Rule 1.4(a)(5), which is substantively identical to deleted paragraph 1.2(e).
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