Prof. Frederick C. Moss and George M. Kryder Comments On Rule 1.2 - Center for Professional Responsibility

COMMENTS ON RULE 1.2
BEFORE THE ABA ETHICS 2000 COMMISSION

February 10, 2000 - Dallas, Texas

Submitted by
Prof. Frederick C. Moss and George M. Kryder, Esq.

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1. The major difficulty faced by Rule 1.2 is delineating the division of authority between the lawyer and the client. Our position is that the current Rule affords lawyers too much authority to ignore their client's wishes.
   
2. 1. The Rule's attempt to divide the client and lawyer's spheres of authority between "means" and "objectives" is unworkable. It allows lawyers to treat too much as "means" or tactical decisions and thereby encourages the lawyer either to not consult the client or to ignore the client's wishes altogether. For example, the current Rule's admonition that lawyers must consult their clients with regard to "the means" by which "objectives" are to be pursued (Rule 1.2(a)), does not clarify what the lawyer must or may do if she and the client disagree as to the means to be pursued. Comment [a] clearly implies that except for "such questions as" expenses to be incurred and harming third persons, the lawyer may reject the client's expressed demands. This promotes the unhealthy attitude among some lawyers that once the representation has been undertaken, it is now the lawyer's case or matter, rather than the client's.
      
   2. We think that the Rule and, especially its comments, should foster the concept of the lawyer-as-fiduciary. This concept should produce a rule and commentary that espouse the client's right to control the case. Except in rare cases, the lawyer should not be able to ignore the client's expressed wishes on the ground that the matter or decision is "tactical" or does not relate to ultimate objectives of the representation.
      
   3. Of course, lawyers are professionals with duties independent of the client. The problem arises when the Rule or its commentary attempts to define positively these arenas (means vs. objectives), where the lawyer's decisions trump the client's. We feel that this is better done negatively. In other words, where the client wishes to take over control of decisions that otherwise are inherently the lawyers (tactical, procedural, means-to-ends activity), the lawyer cannot reject the client's wishes unless to do so would involve the lawyer in a violation of her ethical, legal or moral requirements. That is, if following a client's wishes would result in incompetent representation or violate the law, an ethical rule, or the rights of a third person, the lawyer can refuse to follow the client's demands.
      
   4. We endorse the approach of the Restatement of the Law Governing Lawyers 32-34, that the client has the power to revoke or override the lawyer's decisions even with regards to "tactical" or means-related matters. This puts the power in the hands of the client where it should be, and makes clear that the lawyer cannot ignore the client's preferences.
      
   5. Rule 1.16 defines when a lawyer may or must withdraw from the representation. It seems to us that when a client wishes to take over a decision that is presumptively within the lawyer's authority, the lawyer should follow the client's wishes - no matter how ill-advised and self-defeating - unless doing so would place the lawyer in a permissive or mandatory withdrawal situation. See Restatement 34.
      
   6. Therefore, we endorse the revisions to the Rule that the committee is currently considering to subparagraph (a) and comment [1]. However, we suggest that the first two sentences to revised comment [3] ("At the outset of a representation, the client may authorize the lawyer to take action on the client's behalf without further consultation. Ordinarily, a lawyer may rely on such an advance authorization."), are too broadly stated and in apparent conflict with the meaning of subparagraph (a) of the Rule. The quoted comment can be interpreted to allow a client to delegate all decisions regarding both tactics and objectives, including the decision whether to settle, plead guilty, etc., which we all agree cannot be delegated to the lawyer. In addition to possibly creating confusion, we think the two quoted sentences are simply unnecessary. Therefore, we recommend that they be deleted and that language articulating the points made in part 2 of this paper (below) be added.
3. It is our sense that the Model Rules are not explicit enough in prohibiting certain conduct by which lawyers wrest control of the case from the client. Again, the Restatement is far more explicit and its direct approach should be followed in prohibiting some of the more egregious violations of client autonomy. For example, Rule 1.2 or its commentary should explicitly state that:
   
4. 1. The lawyer may not accept a settlement offer or plea agreement on behalf of a client without the client's informed consent either before or after the offer is made. See Restatement 33, comment c.
      
   2. The lawyer may not seek or make an agreement with a client that permits the lawyer unilaterally and without consultation with the client to decide which terms of settlement or a plea bargain are acceptable. See Restatement 33, comment a.
      
   3. A lawyer may not seek or make an agreement with a client that forbids the client from settling his or her case without the lawyer's consent. This prohibition should be made specifically applicable to contingent fee agreements. See Restatement 33, comments c and d.
      
   4. A lawyer may not coerce a client either to settle the case or to reject a settlement offer or plea agreement by threatening to withdraw. (A lawyer may withdraw from the representation because of a disagreement with the client over whether to settle or plead guilty only when permitted by Rule 1.16.)
      
   5. A lawyer may not seek or make a contingent fee contract with client that gives the lawyer a security interest in the cause of action that allows the lawyer to act as a partner with the client in making all decisions about the case.
      
   6. 1. Some contingent fee contracts contain an assignment of a percentage of the cause of action as security for the payment of the contingent fee. Some lawyers maintain that this assignment prevents the client from settling the lawyer's interest in the case without the lawyer's consent. This should be expressly forbidden.
5. Finally, Rule 1.2 is far too vague in dealing with the lawyer's duty to not assist a client in ongoing criminal or fraudulent activity.
   
6. 1. Specifically, comment [7] to Rule 1.2 inadequately deals with "ongoing" fraud or criminal client activity that involves the lawyer's services. We suggest that the comment be revised to incorporate the conclusions of ABA Opinion 92-366 (1992), to wit:
      
   2. 1. The lawyer must withdraw from any representation of a client that, directly or indirectly, would have the effect of assisting the client's continuing or intended future fraud.
         
      2. The lawyer must withdraw from all representation if the fact of such representation is likely to be known to and relied upon by third persons to whom the continuing fraud is directed, and if the representation is thereby likely to assist in the fraud.
   3. Either comment [7] or the comment to Rule 1.6 should spell out the conclusions of Opinion 92-366 regarding the mandatory and permissive "noisy" withdrawal or disavowal of the lawyer's work product in order to avoid assisting client wrongdoing. If the conclusions of Op. 92-366 are incorporated into the comments to Rule 1.6, a cross-reference should be placed in comment [7] to Rule 1.2.
7. Original subsection (b) of Rule 1.2, which states that representation does not constitute endorsement of the client's views or activities, should be moved to a comment. As stated, it is not an ethical mandate. It sounds more like a defense of lawyers. However, if left in the Rule, it ought to be rewritten to state an ethical precept. E.g.,