Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 150

Declaration of Austin Tarango in Support of Reply in Support of #101 MOTION TO DISQUALIFY BRIDGES & MAVRAKAKIS, LLP filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E)(Maroulis, Victoria) (Filed on 8/8/2011) Modified on 8/10/2011 counsel failed to link entry to related document (dhm, COURT STAFF).

EXHIBIT D

Proposed Rule 1.2 [n/a]
“Scope of Representation and Allocation
of Authority Between Client and Lawyer”
(Draft #5, 2/5/10)
Summary: This rule states a requirement that a lawyer abide by a client’s decisions concerning the
objective of the representation and that a lawyer obtain client consent to any limited scope
representation. It also provides that a lawyer’s representation does not constitute an endorsement of
the client’s views or activities and prohibits a lawyer from counseling or assisting a client’s criminal or
fraudulent conduct.

Comparison with ABA Counterpart
Rule

Comment

ABA Model Rule substantially adopted

□
□
□
□

ABA Model Rule substantially rejected

□
□

ABA Model Rule substantially adopted
ABA Model Rule substantially rejected

Some material additions to ABA Model Rule

Some material additions to ABA Model Rule

Some material deletions from ABA Model Rule

Some material deletions from ABA Model Rule

No ABA Model Rule counterpart

□

No ABA Model Rule counterpart

Primary Factors Considered

Existing California Law
Rule

Rules 3.36 – 3.37 and 5.70 – 5.71 of the California Rules of Court

Statute

Bus. & Prof. Code § 6104; Penal Code § 1018

Case law

Blanton v. Womancare Inc. (1985) 38 Cal.App.3d 396

□

State Rule(s) Variations (In addition, see provided excerpt of selected state variations.)

□

Other Primary Factor(s)

1

Rule Revision Commission Action/Vote to Recommend Rule Adoption
(13 Members Total – votes recorded may be less than 13 due to member absences)

Approved on 10-day Ballot, Less than Six Members Opposing Adoption

□

Vote (see tally below)
Favor Rule as Recommended for Adoption __9___
Opposed Rule as Recommended for Adoption __0___
Abstain ___0__
Approved on Consent Calendar
Approved by Consensus

□

□

Commission Minority Position, Known Stakeholders and Level of Controversy

Minority Position Included on Model Rule Comparison Chart:

Yes

□ No

(See Introduction and Explanation of Changes for paragraph (a) in the Model Rule comparison chart.)

No Known Stakeholders

□

The Following Stakeholders Are Known:

□

Very Controversial – Explanation:

Moderately Controversial – Explanation:
See the Introduction and Explanation of Changes for paragraph (a) of the proposed Rule in
the Model Rule comparison chart.

□

Not Controversial

RRC - 3-210 [1-2] - Dashboard - ADOPT - DFT3.1 (02-05-10)DS-KEM-LM.doc

2

COMMISSION FOR THE REVISION OF THE RULES OF PROFESSIONAL CONDUCT
Proposed Rule 1.2* Scope of Representation and Allocation of Authority Between Client and Lawyer
February 2010
(Draft rule following consideration of public comment)

INTRODUCTION:

Proposed Rule 1.2 largely tracks Model Rule 1.2. There are only two differences between the black letter of the Model Rule and the
proposed Rule. First, a clause has been added to paragraph (a) in recognition that in certain situations, a lawyer’s consent to a guilty
plea is required. Second, paragraph (d) has been divided into two subparagraphs for clarity, with subparagraph (d)(1) stating the general
prohibition and subparagraph (d)(2) clarifying what a lawyer is permitted to do in providing counsel to the client.
The comments for paragraphs (a) through (c) (Comments [1]-[8]) closely follow the Model Rule comments, with citations to seminal
California authority added. In particular, a reference has been added in Comment [8] to California Rules of Court, Rules 3.35-3.37
(limited scope representation rules applicable in civil matters generally), and 5.70-5.71 (limited scope representation rules applicable in
family law matters), implemented to promote access to justice. The comments accompanying paragraph (d) (Comments [9]-[12]),
which were prepared in conjunction with the Commission’s consideration of proposed Rule 1.13 (“Organization as Client”) have been
substantially revised to provide better guidance to lawyers in providing counsel to clients.
Minority. A minority of the Commission objects on the ground that the Rule is not suitable as a disciplinary rule. See Explanation of
Changes for paragraph (a).
Variation in Other Jurisdictions. Most jurisdictions have made minor changes to Model Rule 1.2. At least four states (Maine,
Missouri, New Hampshire, and Wyoming) have enhanced MR 1.2(c), limiting the scope of representation, to encourage lawyers to
provide such services, thereby promoting the access to justice. See “Selected State Variations,” Model Rule 1.2, from Gillers, Simon &
Perlman, REGULATION OF LAWYERS: STATUTES AND STANDARDS (2009), attached.

*

Proposed Rule 1.2, Draft 5 (2/5/10). Redline/strikeout showing changes to the ABA Model Rule.

RRC - 3-210 [1-2] - Compare - Introduction - DFT3 (02-05-10)DS-KEM-LM.doc

3

ABA Model Rule

Commission’s Proposed Rule*

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

(a)

*

Subject to paragraphs (c) and (d), a lawyer (a)
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.

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 Except as otherwise provided by law
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.

Explanation of Changes to the ABA Model Rule

Paragraph (a) is substantially similar to Model Rule 1.2(a), except
the last sentence has been revised to recognize that, at least in
California, there are certain situations under which a lawyer’s
consent to a guilty plea is required. See Penal Code § 1018. See
also Comment [1].
Minority. A minority of the Commission objects to the Rule on the
ground that, although it might be appropriate as a statement of
hortatory principles, it is wrong as a disciplinary rule and will
conflict with lawyers’ duties to their clients, both constitutional and
statutory. The minority identifies a fundamental problem in that
there is no clear distinction between the “objectives” and the
“means” of representation. For example, in a criminal case, the
accused has a constitutional right to have the complaining witness
cross-examined. If we characterize the decision about whether to
cross-examine that witness as “means” and therefore within the
dominion of the lawyer, we deprive the accused of a fundamental
Constitutional right. Denial of cross-examination of a witness
without a waiver by the client is “. . . a constitutional error of the
first magnitude and no amount of showing of want of prejudice
would cure it.” Brookhart v. Janis, 384 U.S. 1, 3 (1966). A rule of
professional conduct should not deprive a client of a Constitutional
right. The majority notes that the rule does not countenance such
conduct by the lawyer. As explained in Comment [1], decisions
concerning a client’s “substantial rights” are within the province of
the client. The rule does not require a lawyer to ignore the client’s
interests in making decisions about how to conduct a case; rather,
it emphasizes that the lawyer must be sensitive to the client’s
rights and interests.

Proposed Rule 1.2, Draft 5 (2/5/10). Redline/strikeout showing changes to the ABA Model Rule

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

4

ABA Model Rule

Commission’s Proposed Rule*

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Explanation of Changes to the ABA Model Rule

The minority also suggests that, even if there were a valid
distinction between “objectives” and “means,” as to many “means,”
the client should be able to instruct the lawyer. Again, the rule
provides for exactly that outcome. See Comment [1].
Finally, the minority observes that, in some cases, a lawyer must
be able to disagree with a client’s decisions concerning the
objectives of the representation and to refuse to “abide by” the
client’s decision as to a plea in a criminal case. The minority
notes that if a lawyer believes there is a valid defense in a death
penalty case, the lawyer is required to exercise independent
judgment about whether to oppose the client’s plea and to
advocate against conviction or the death penalty. Penal Code
section 1018, which states in part: “No plea of guilty of a felony for
which the maximum punishment is death, or life imprisonment
without the possibility of parole, shall be received from a
defendant who does not appear with counsel, nor shall that plea
be received without the consent of the defendant's counsel.” See,
e.g., People v. Massie, 40 Cal. 3d 620 (1985); People v. Alfaro
(2007) 41 Cal.4th 1277, cert. denied 128 S.Ct. 1476, 170 L.Ed.2d
300. The minority concludes that, if the Supreme Court approves
Rule 1.2, so a lawyer who does not comply with a client’s decision
regarding a plea in a criminal case faces discipline, then the
validity of Penal Code section 1018 is jeopardized.

(b)

A lawyer's representation of a client, including (b)
representation by appointment, does not
constitute an endorsement of the client's
political, economic, social or moral views or
activities.

A lawyer's representation of a client, including Paragraph (b) is identical to Model Rule 1.2(b).
representation by appointment, does not
constitute an endorsement of the client's
political, economic, social or moral views or
activities.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

5

ABA Model Rule

Commission’s Proposed Rule*

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Explanation of Changes to the ABA Model Rule

(c)

A lawyer may limit the scope of the (c)
representation if the limitation is reasonable
under the circumstances and the client gives
informed consent.

A lawyer may limit the scope of the Paragraph (c) is identical to Model Rule 1.2(c).
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, (d)
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.

(1)

A lawyer shall not counsel a client to
engage, or assist a client in conduct that
the lawyer knows is criminal, or
fraudulent, or a violation of any law, rule,
or ruling of a tribunal.

(2)

Notwithstanding paragraph (d)(1), but a In addition, the phrase “violation of any law, rule or ruling of a
lawyer
may
discuss
the
legal tribunal” is added to the scope of the rule for greater protection of
consequences of any proposed course of the public and the fair administration of justice.
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 thea law, rule, or ruling of
a tribunal.

Paragraph (d) is based on Model Rule 1.2(d), retaining both its
substance and language. The single Model Rule paragraph has
been split into two subparagraphs for clarity: subparagraph (d)(1)
sets forth the general prohibition and subparagraph (d)(2) clarifies
what the lawyer is permitted to do.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

6

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

Explanation of Changes to the ABA Model Rule

Allocation of Authority between Client and Allocation of Authority between Client and
Lawyer
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.

[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. See e.g. Penal Code section 1018. A
lawyer is not authorized merely by virtue of the
lawyer’s retention by a client, to impair the client's
substantial rights or the client’s claim itself. Blanton
v. Womancare, Inc. (1985) 38 Cal.3d 396, 404 [212
Cal.Rptr. 151, 156]. Accordingly, The the decisions
specified in paragraph (a), such as whether to settle
a civil matter or waive a jury trial in a civil matter,
must also be made by the client. See Rule 1.4(ac)(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,
provided the lawyer does not violate Business and
Professions Code section 6068(e) or Rule 1.6.

Comment [1] is based on Model Rule 1.2, cmt. [1] but makes five
changes to conform the comment to California law.
First, as a specific example of “limits imposed by law and the
lawyer’s professional obligations,” the comment includes a
reference to Penal Code § 1018, which provides: “No plea of
guilty of a felony for which the maximum punishment is death, or
life imprisonment without the possibility of parole, shall be
received from a defendant who does not appear with counsel, nor
shall that plea be received without the consent of the defendant's
counsel.”
Second, it adds language and a citation to well-settled California
authority, Blanton v. Womancare, Inc., concerning the allocation
of authority between lawyer and client.
Third, it recognizes that in California, the authority under the
California Constitution to waive a jury trial in a civil matter resides
in the client.
Fourth, it substitutes a cross-reference to proposed Rule 1.4(c),
which expressly sets forth a lawyer’s communication duties
concerning settlement offers. Rule 1.4(c) carries forward current
rule 3-510, which itself conforms to legislative policy in Bus. &
Prof. Code § 6103.5.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

7

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

Explanation of Changes to the ABA Model Rule

Finally, Comment [1] clarifies that acting with the client’s implied
authority does not include implied authority to disclose client
confidential information protected by Bus. & Prof. Code section
6068(e) or rule 1.6 of these rules. By clarifying that implied
authorization does not include implied disclosure of confidential
information, this provides greater protection to consumers of legal
services and conforms the rule to current California law and
proposed Rule 1.6.

[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

[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

Comment [2] is identical to Model Rule 1.2, cmt. [2], except that
the specific reference to Model Rule 1.16(b)(4) has been deleted
because the Commission recommends not adopting that
subparagraph. Model Rule 1.16(b)(4) permits a lawyer to
withdraw from representing a client if: “(4) the client by other
conduct renders it unreasonably difficult for the lawyer to carry
out the employment effectively.”
The Commission's
recommended drafting of Rule 1.16 increases client protection by
narrowing a lawyer's right to withdraw from a representation.
Consequently, the Comment now generally points the lawyer to
proposed Rule 1.16(b), which governs permissive withdrawal
from the representation.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

8

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

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).

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.

[3] At the outset of, or during a representation, the Comment [3] is identical to MR 1.2, cmt. [3], except that it clarifies
client may authorize the lawyer to take specific that a client may authorize the lawyer to take specific action at
action on the client's behalf without further any time during the representation.
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 1.14.

[4] In a case in which the client appears to be Comment [4] is identical to MR 1.2, cmt. [3].
suffering diminished capacity, the lawyer's duty to
abide by the client's decisions is to be guided by
reference to Rule 1.14.

Independence from Client's Views or Activities

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.

[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.

Explanation of Changes to the ABA Model Rule

Comment [5] is identical to MR 1.2, cmt. [5]. It is consistent with
legislative policy in Bus. & Prof. Code § 6068(h), which provides it
is the duty of a lawyer: “(h) Never to reject, for any consideration
personal to himself or herself, the cause of the defenseless or the
oppressed.”

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

9

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

Explanation of Changes to the ABA Model Rule

Agreements Limiting Scope of Representation

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.

[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.

Comment [6] is nearly identical to Model Rule 1.2, cmt. [6], the
only change being the deletion of “repugnant,” a term found in
Model Rule 1.16(b)(4), a provision the Commission recommends
not adopting. See Explanation of Changes, Comment [2], above.

[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

[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

Comment [7] is nearly identical to Model Rule 1.2, cmt. [7].
However, a sentence has been added at the end of the comment
to alert lawyers that they may be obligated to inform clients of
legal problems that fall outside the scope of representation. See,
e.g., Nichols v. Keller (1993) 19 Cal.Rptr.2d 601.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

10

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

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.

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.
Even where the scope of representation is expressly
limited, the lawyer may still have a duty to alert the
client to reasonably apparent legal problems outside
the scope of representation.

[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.

[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. See also California Rules of
Court, Rules 3.35 -3.37 (limited scope rules
applicable in civil matters generally), and 5.70-5.71
(limited scope rules applicable in family law matters).

Criminal,
Fraudulent
Transactions

and

Prohibited Criminal,
Fraudulent
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

and

Explanation of Changes to the ABA Model Rule

Comment [8] is based on Model Rule 1.2, cmt. [8] and is identical,
except that references to the California Rules of Court on limited
scope representation have been added to apprise lawyers of
these important provisions for access to justice.

Prohibited

[9] Paragraph (d) prohibits a lawyer from knowingly
counseling or assisting a client to commit a crime or
fraud. This prohibition or to violate any rule,
howeverlaw, or ruling of a tribunal. However, this
Rule does not preclude theprohibit a lawyer from
giving an honesta good faith opinion about the
actualforeseeable consequences that appear likely
to result fromof a client's proposed conduct. Nor

Comment [9] is based on Model Rule 1.2, cmt. [9], but adds
language primarily to conform to and explain the added scope of
proposed paragraph (d).
Sentence 1 adds the language of the expanded scope of
proposed paragraph (d) by adding “or to violate any rule, law or
ruling of a tribunal.”

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

11

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

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.

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.

Sentence 2 substitutes “prohibit” for “preclude” to clarify that the
prohibition is mandatory. It substitutes “good faith” for “honest” to
change from the subjective standard to an objective standard.
The words “forseeable consequences of a client’s proposed
conduct” have been substituted for “actual consequences that
appear likely to result from a client’s conduct” for the sake of
clarification, brevity and to create an objective rather than
subjective standard.

[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.

[10] When the client’s course of action has already
begun and is continuing, the lawyer's responsibility is
especially delicate.The prohibition in paragraph
(d)(1) applies whether or not the client’s conduct has
already begun and is continuing. The lawyer is
required to avoid assisting the client, for For
example, by draftinga lawyer may not draft or
deliveringdeliver documents that the lawyer knows
are fraudulent or by suggesting; nor may the lawyer
counsel how the wrongdoing might be concealed. A
The lawyer may not continue assisting a client in
conduct that the lawyer originally supposedbelieved
was legally proper but thenlater discovers is criminal
or, fraudulent. The lawyer must, therefore, withdraw
fromor the representationviolation of any rule, law, or
ruling of a tribunal. In any event, the lawyer shall not
violate his or her duty of protecting all confidential
information as provided in Business & Professions
Code section 6068(e)(1). When a lawyer has been
retained with respect to client conduct described in
paragraph (d)(1), the lawyer shall limit his or her
actions to those that appear to the lawyer to be in

Although the concepts contained in Model Rule 1.2, cmt. [10]
have been retained, the comment has been redrafted to remove
ambiguity and to create a brighter line for lawyer guidance and
public protection.

Explanation of Changes to the ABA Model Rule

Sentence 1 of the Model Rule comment has been stricken
because it provides no guidance (i.e., telling a lawyer that a
situation is delicate provides no guidance concerning conduct).
Substituted sentence 1 provides guidance by clarifying that a
lawyer must comply with subparagraph (d)(1) regardless of the
temporal status of the client’s conduct.
Sentence 2 strikes language creating ambiguity and clarifies that
a lawyer may not engage in the conduct described.
Sentence 3 substitutes “believed” for “supposed” and “later” for
“then” to removed ambiguity and to conform with the proposed
black letter rule.
Sentence 4 has been added to conform the Comment to statutory
duties of confidentiality.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

12

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment
the best lawful interest of the client in, including
counseling the matter. See Rule 1.16(a)client about
possible corrective or remedial action. In some
cases, withdrawal alone might be insufficient. It may
be necessary for the lawyerlawyer’s response is
limited to give notice of the fact of withdrawallawyer’s
right and, where appropriate, duty to disaffirm any
opinion, document, affirmationresign or the like.
Seewithdraw in accordance with Rule 4.11.16.

Explanation of Changes to the ABA Model Rule

Sentence 5 has been added to clarify that the lawyer’s duties are
consistent with California law.
Sentence 6 retains the Model Rule Comment concept of
withdrawal but clarifies that the option may be mandatory or
permissive, depending upon the circumstances.
The last sentence of the Model Rule Comment concerning
disaffirmation of “any opinion, document, affirmation or the like,”
has been deleted to conform to California policies of
confidentiality, which do not permit “noisy” withdrawals.

[11] Where the client is a fiduciary, the lawyer may [11] Where the client is a fiduciary, the lawyer may Model Rule 1.2, cmt. [11] has been stricken because it is
be charged with special obligations in dealings with a be charged with special obligations in dealings with a ambiguous and may imply a relationship with beneficiaries that is
beneficiary.
beneficiary.
not consistent with California law. For example, a lawyer
representing a trustee generally has no duties or special
obligations to the beneficiaries of a trust.

[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

[1211] Paragraph (d)(2) authorizes applies whether
or not the defrauded party is a party to the
transaction. Hence, a lawyer must not participate in
a transaction to effectuate criminalcounsel or
fraudulent avoidance of tax liability. Paragraph (d)
does not preclude undertakingassist a criminal
defense incidentclient to make a general retainer for
legal servicesgood faith effort to a lawful enterprise.
The last clause of paragraph (d) recognizes that
determiningdetermine the validity, scope, meaning or
interpretationapplication of a statutelaw, rule or
Determining the
regulationruling of a tribunal.

Although Comment [11] retains the concepts contained in Model
Rule 1.2, cmt. [12], the Model Rule comment has been
substantially revised to provide better guidance to lawyers, and
thus better protection to client’s, concerning the scope of sub
paragraph (d)(2)’s permitted conduct. In particular, in the last two
sentences the revised comment expands on the last clause of
subparagraph (d)(2), providing guidance to lawyers whose clients
intend to engage in civil disobedience.

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM

13

ABA Model Rule

Commission’s Proposed Rule

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Rule 1.2 Scope of Representation and Allocation
of Authority Between Client and Lawyer

Comment

Comment

Explanation of Changes to the ABA Model Rule

authorities.

validity, scope, meaning or application of a law, rule,
or ruling of a tribunal in good faith may require a
course of action involving disobedience of the
statutelaw, rule, or regulationruling of a tribunal, or of
the interpretationmeaning placed upon it by
governmental authorities. Paragraph (d)(2) also
authorizes a lawyer to advise a client on the
consequences of violating a law, rule, or ruling of a
tribunal the client does not contend is unenforceable
or unjust in itself, as a means of protesting a law or
policy the client finds objectionable. For example, a
lawyer may properly advise a client about the
consequences of blocking the entrance to a public
building as a means of protesting a law or policy the
client believes to be unjust.

[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).

[1312] If a lawyer comes to know or reasonably Comment [12] is based on Model Rule 1.2, cmt. [13]. The only
should know that a client expects assistance not changes are to conform to California rules style and to correct a
permitted by thethese Rules of Professional Conduct cross-reference.
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)(56).

RRC - 3-210 [1-2] - Compare - Rule & Comment Explanation - DFT3 (02-05-10)DS-KEM-LM.doc

14

Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(Comparison of the Current Proposed Rule to the initial Public Comment Draft)
(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.
InExcept as otherwise provided by law 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)

(1)

A lawyer shall not counsel a client to
engage, or assist a
client in conduct that the lawyer knows is criminal, fraudulent, or
a violation of any law, rule, or ruling of a tribunal

(2)

Notwithstanding paragraph (d)(1), 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 a law, rule, or ruling of a tribunal.

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. See
e.g. Penal Code section 1018. A lawyer is not authorized merely by
virtue of the lawyer's retention by a client, to impair the client's
substantial rights or the client's claim itself. Blanton v. Womancare, Inc.
(1985) 38 Cal.3d 396, 404 [212 Cal.Rptr. 151, 156].) Accordingly, the
decisions specified in paragraph (a), such as whether to settle a civil
matter or waive a jury trial in a civil matter, must also be made by the
client. See Rule [1.4(c)] 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, provided the
lawyer does not violate Rule 1.6 or Business and Professions Code
section 6068(e) or Rule 1.6.

[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

A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed
consent.

(d)

[1]

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)

Comment

RRC - 1.2 - REDLINE - DFT5 cf. PC Draft

15

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). Conversely, the client may resolve
the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

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 imprudent.

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. See also California Rules of Court,
Rules 3.35-3.37 (limited scope rules applicable in civil matters
generally), and 5.70-5.71 (limited scope rules applicable in family
law matters).

At the outset of, or during 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]

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.
Even where the scope of
representation is expressly limited, the lawyer may still have a duty
to alert the client to reasonably apparent legal problems outside the
scope of representation.

[8]

[3]

[7]

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 1.14.

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

RRC - 1.2 - REDLINE - DFT5 cf. PC Draft

16

application of a law, rule or ruling of a tribunal. Determining the
validity, scope, meaning or application of a law, rule, or ruling of a
tribunal in good faith may require a course of action involving
disobedience of the law, rule, or ruling of a tribunal, or of the meaning
placed upon it by governmental authorities. Paragraph (d)(2) also
authorizes a lawyer to advise a client on the consequences of violating
a law, rule, or ruling of a tribunal the client does not contend is
unenforceable or unjust in itself, as a means of protesting a law or
policy the client finds objectionable. For example, a lawyer may
properly advise a client about the consequences of blocking the
entrance to a public building as a means of protesting a law or policy
the client believes to be unjust.

Criminal, Fraudulent and Prohibited Transactions
[9]

Paragraph (d) prohibits a lawyer from knowingly counseling or
assisting a client to commit a crime or fraud or to violate any rule, law,
or ruling of a tribunal. However, this Rule does not prohibit a lawyer
from giving a good faith opinion about the foreseeable consequences
of a client's proposed 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]

The prohibition in paragraph (d)(1) applies whether or not the client's
conduct has already begun and is continuing. For example, a lawyer
may not draft or deliver documents that the lawyer knows are
fraudulent; nor may the lawyer counsel how the wrongdoing might be
concealed. The lawyer may not continue assisting a client in conduct
that the lawyer originally believed was legally proper but later discovers
is criminal, fraudulent, or the violation of any rule, law, or ruling of a
tribunal. In any event, the lawyer shall not violate his or her duty of
protecting all confidential information as provided in Rule 1.6 and
Business &and Professions Code section 6068(e)(1). When a lawyer
has been retained with respect to client conduct described in
paragraph (d)(1), the lawyer shall limit his or her actions to those that
appear to the lawyer to be in the best lawful interest of the client,
including counseling the client about possible corrective or remedial
action. In some cases, the lawyer's response is limited to the lawyer's
right and, where appropriate, duty to resign or withdraw in accordance
with Rule 1.16.

[11]

Paragraph (d)(2) authorizes a lawyer to counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or

[12]

If a lawyer comes to know or reasonably should know that a client
expects assistance not permitted by these Rules 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)(6)].

RRC - 1.2 - REDLINE - DFT5 cf. PC Draft

17

Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(Commission’s Proposed Rule – Clean Version)

(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.
Except as otherwise provided by law 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)

(1)

[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. See
e.g. Penal Code section 1018. A lawyer is not authorized merely by
virtue of the lawyer's retention by a client, to impair the client's
substantial rights or the client's claim itself. Blanton v. Womancare, Inc.
(1985) 38 Cal.3d 396, 404 [212 Cal.Rptr. 151, 156].) Accordingly, the
decisions specified in paragraph (a), such as whether to settle a civil
matter or waive a jury trial in a civil matter, must also be made by the
client. See Rule 1.4(c) 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, provided the
lawyer does not violate Rule 1.6 or Business and Professions Code
section 6068(e).

[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

A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed
consent.

(d)

Allocation of Authority between Client and Lawyer

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)

Comment

(2)

A lawyer shall not counsel a client to engage, or assist a client
in conduct that the lawyer knows is criminal, fraudulent, or a
violation of any law, rule, or ruling of a tribunal.
Notwithstanding paragraph (d)(1), 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
a law, rule, or ruling of a tribunal.

RRC 1.2 - Clean-Landscape - DFT 5 (02-05-10)-LM

18

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). Conversely, the client may resolve
the disagreement by discharging the lawyer. See Rule 1.16(a)(3).
[3]

[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.
Even where the scope of representation is expressly limited, the lawyer
may still have a duty to alert the client to reasonably apparent legal
problems outside the scope of representation.

[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. See also California Rules of Court 3.353.37 (limited scope rules applicable in civil matters generally), and
5.70-5.71 (limited scope rules applicable in family law matters).

At the outset of, or during 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]

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 imprudent.

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 1.14.

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

RRC 1.2 - Clean-Landscape - DFT 5 (02-05-10)-LM

19

Criminal, Fraudulent and Prohibited Transactions
[9]

Paragraph (d) prohibits a lawyer from knowingly counseling or
assisting a client to commit a crime or fraud or to violate any rule, law,
or ruling of a tribunal. However, this Rule does not prohibit a lawyer
from giving a good faith opinion about the foreseeable consequences
of a client's proposed 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]

The prohibition in paragraph (d)(1) applies whether or not the client's
conduct has already begun and is continuing. For example, a lawyer
may not draft or deliver documents that the lawyer knows are
fraudulent; nor may the lawyer counsel how the wrongdoing might be
concealed. The lawyer may not continue assisting a client in conduct
that the lawyer originally believed was legally proper but later discovers
is criminal, fraudulent, or the violation of any rule, law, or ruling of a
tribunal. In any event, the lawyer shall not violate his or her duty of
protecting all confidential information as provided in Rule 1.6 and
Business and Professions Code section 6068(e). When a lawyer has
been retained with respect to client conduct described in paragraph
(d)(1), the lawyer shall limit his or her actions to those that appear to
the lawyer to be in the best lawful interest of the client, including
counseling the client about possible corrective or remedial action. In
some cases, the lawyer's response is limited to the lawyer's right and,
where appropriate, duty to resign or withdraw in accordance with Rule
1.16.

[11]

application of a law, rule or ruling of a tribunal. Determining the
validity, scope, meaning or application of a law, rule, or ruling of a
tribunal in good faith may require a course of action involving
disobedience of the law, rule, or ruling of a tribunal, or of the meaning
placed upon it by governmental authorities. Paragraph (d)(2) also
authorizes a lawyer to advise a client on the consequences of violating
a law, rule, or ruling of a tribunal the client does not contend is
unenforceable or unjust in itself, as a means of protesting a law or
policy the client finds objectionable. For example, a lawyer may
properly advise a client about the consequences of blocking the
entrance to a public building as a means of protesting a law or policy
the client believes to be unjust.

Paragraph (d)(2) authorizes a lawyer to counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or

[12]

If a lawyer comes to know or reasonably should know that a client
expects assistance not permitted by these Rules 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)(6).

RRC 1.2 - Clean-Landscape - DFT 5 (02-05-10)-LM

20

TOTAL = 9

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

1

Commenter

California Attorneys for
Criminal Justice (“CACJ”)

Position1

M

Comment
on Behalf
of Group?

Rule
Paragraph

1.2(a)

Comment

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

Our proposed modification would be to add The Commission agreed in principle and modified
the following language to paragraph (a) at the the last sentence of paragraph (a) as follows:
end/following sentence: A lawyer shall abide
Except as otherwise provided by law in a criminal
by a client’s decision whether to settle a
case, the lawyer shall abide by the client's
matter, “to the extent it is not in conflict with
decision, after consultation with the lawyer, as to
statutory or constitutional law.”
a plea to be entered, whether to waive jury trial
and whether the client will testify.
The Commission also added a reference to Penal
Code § 1018 in Comment [1].

2

California Public Defenders
Association (“CPDA”)

M

Cmt. [2]

CPDA’s primary concern is with the Proposed
Rule as developed in Proposed Comment [2].
CPDA proposes that to avoid a potential The Commission disagrees with the deletion of the
conflict with established legal practice, the two sentences in Comment [2], both of which are
second and third sentence in Comment [2] accurate.
should be deleted. (Proposed deletion:
“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.”)

1

A = AGREE with proposed Rule

D = DISAGREE with proposed Rule

M = AGREE ONLY IF MODIFIED

NI = NOT INDICATED

RRC - 3-210 [1-2] - Public Comment Chart - By Commenter - DFT4.1 (02-05-10)DS-KEM-LM.doc

21

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

Comment
on Behalf
of Group?

Rule
Paragraph

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

Comment

RRC Response

As noted in the Comment, the rich existing
record of decisional law clearly defines the
responsibility that lawyers have to know and
practice legal obligations while respecting the
client’s goals.

The Commission also disagrees that the Comment
to the Rule should be a compendium of the law as
developed in the case law. It would be impossible
to capture every possible variation.

To this end, CPDA believes that it would be
helpful if the Comment included references to
the most common guidelines provided by
established case law. CPDA believes that
inclusion of these fundamental decisional
references, along with deletion of the two
sentences identified above, will clarify the
existing ambiguities in the Proposed Rule and
Comment.
3

COPRAC

M

1.2(a)

1.2(d)

As to paragraph (a), COPRAC agrees with
the minority of the Commission and believes
that it is difficult to differentiate between
means and objectives. COPRAC also agrees
with the minority that the language of section
(a) of the rule might be read to conflict with a
client’s Constitutional and statutory duties to
the lawyer’s clients. COPRAC also notes that
the last sentence of paragraph (a) raises the
issue whether the lawyer can waive a jury trial
on behalf of a client in a civil case.

The Commission disagrees with COPRAC’s
comment concerning means and objectives. The
typical meaning understood is that objectives are
achieved through the means utilized. Comments [1]
and [2] provide guidance on this issue.
The Commission, however, agrees with COPRAC’s
concern with the last sentence and has revised it
accordingly. See Response to CACJ, above.

As to paragraph (d), COPRAC objects to the The Commission disagrees. The language cited is
inclusion in paragraph (d)(1) of the proposed carried forward from current rule 3-210.
rule (modifying paragraph (d) of the

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22

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

Comment
on Behalf
of Group?

Rule
Paragraph

Comment

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

corresponding ABA Model Rule) of the phrase
referring to “a violation of any law, rule, or
ruling of a tribunal.” We believe that such
language may subject lawyers to an
inappropriate and unnecessarily harsh
disciplinary standard.
Absent fraud or
criminal conduct, COPRAC does not believe
such assistance should subject lawyers to
possible discipline.
Cmt. [9]

4

Judge, Michael P.
Los Angeles County Public
Defender

D

5

Los Angeles County Bar
Association (“LACBA”),
Professional Responsibility
and Ethics Committee

D

Should the above phrase be included in the The Commission does not understand how adding
rule, we recommend a modification to the phrase, “to violate any rule, law, or ruling of a
Comment [9] to conform the references to this tribunal,” would clarify the second sentence.
phrase. The phrase including the added
scope is included in the first sentence of
Comment [9]. A corresponding reference to
the added scope should be included in the
second sentence of Comment [9].

1.2(a)

We agree with the concern of the minority of The Commission agrees and has revised the last
the Commission regarding the intersection of sentence of paragraph (a). See Response to CACJ,
the proposed rule and the provisions of Penal above.
Code Section 1018.
We oppose Proposed Rule 1.2 in its entirety The Commission disagrees with LACBA’s position.
because the committee believes that it is not The rule not only provides understandable
appropriate as a disciplinary rule.
disciplinary standards in paragraphs (a) and (d), the
latter of which simply carries forward current rule 3Failure to follow the client’s objectives may 210, but also provides important guidance to
result in a malpractice action or fee dispute, lawyers in their relationships with clients.
but should not lead to discipline.

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23

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

Comment
on Behalf
of Group?

Rule
Paragraph

Comment

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

1.2(a)

If Rule is adopted, here are suggested The Commission did not make the suggested
amendments:
change. The language used is taken from the
Model Rule and addresses client’s substantial rights
Last sentence of paragraph (a) should state:
that are universally recognized as constitutionally
based.
“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, whether the
client will testify, and whether to file an
appeal.

1.2(d)

We suggest the following changes to 1.2(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.

Cmt. [1]

We suggest that the following sentence be
added to Comment [1]:
“Paragraph (a) does not override the rules
concerning mandatory or permissive
withdrawal.”

The Commission did not make the suggested
change. First, the Commission determined it was
appropriate to carry forward the phrase, “or a
violation of any law, rule, or ruling of a tribunal,” from
current rule 3-210.
Second, the Commission
concluded that dividing what is currently two
sentences in rule 3-210, one stating the general rule
and the other the exception, into separate
subparagraphs would make the provision clearer.

The Commission did not make suggested change.
References to Rule 1.16 (Termination of the
Representation)
concerning
permissive
and
mandatory withdrawal are already found in
Comments [2] and [10], respectively.

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24

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

6

Office of Chief Trial Counsel
(“OCTC”), State Bar of
California

NI

Comment
on Behalf
of Group?

Rule
Paragraph

1.2(a),(b)

Comment

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

1. OCTC is concerned that paragraphs (a) 1. The Commission disagrees. See Response to
and (b) of proposed Rule 1.2, although in the LACBA, above.
Model Rules version, are not rules subject to
discipline and thus do not belong in the Rules
of Professional Conduct.

1.2(c)

2. OCTC is concerned that, while paragraph
(c) permits limited scope representations if the
limitation
is
reasonable
under
the
circumstances, it does not specifically prohibit
limited scope representations when they are
not permitted by law. See In the Matter of
Valinoti (Review Dept. 2002) 4 Cal. State Bar
Ct. Rptr. 498, 520-521. That may be what
Comment [8] is trying to explain, but, it should
be specifically in the rule, not just a comment.

2. The Commission disagrees. OCTC's proposals
regarding paragraph (c) and comment [8] do not
appear to reflect the views repeatedly expressed by
Supreme Court Justice George, the Judicial Council,
the Access to Justice Commission and others.
Limited scope representation is not prohibited
unless there is an exception allowing for such
representation. Rather, it is permitted unless
specifically prohibited or other duties have been
imposed. The OCTC’s reading of Valinoti appears
overbroad and inconsistent with the goal of access
to justice. Nevertheless, the Commission agrees
with OCTC's suggestion regarding comment [8] and
has added to Comment [7] guidance regarding
duties attendant to limited scope representation.

1.2(c)

3. OCTC also believes that the consent in
paragraph (c) should be in writing. Given that
limited scope representation is the exception,
it would be better policy and more enforceable
to require that it be in writing.

The Commission disagrees. The Commission voted
unanimously to adopt the rule which is consistent
with the Board of Governors resolution concerning
limited scope representation. It does not appear
that limited scope/discrete task representation is an
"adverse" interest or "conflict" that necessitates
requiring "written" consent. To some extent, all
representations have a limit to the scope. For

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25

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

Comment
on Behalf
of Group?

Rule
Paragraph

Comment

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

example, someone providing only "ethics advice"
limits the scope of the representation to this area
and would not necessarily have the expertise to
suggest any or all of the civil/procedural implications
of the advice given.
Requiring written consent would operate as an
impediment to access to justice. It places a burden
on legal services attorneys and attorneys who might
be willing to undertake a discrete task for a small
fee, if they must also create a writing in every such
matter as well. This would have a chilling effect and
deter attorneys who may be making little or no
money.
Public protection will not be compromised since
attorneys will have the burden of demonstrating that
they have obtained "informed consent" - they may
choose the obvious method of a writing - but it
should not be subject to discipline if they do not.
Other jurisdictions have not included such a
requirement. 
1.2(d)

4. OCTC agrees with paragraph (d)'s
broadening of current rule 3-210 to include
criminal and fraudulent conduct as well as any
law, rule, or ruling. However, paragraph (d),
unlike current rule 3-210, does not specifically
provide for the defense of good faith or
appropriate steps. While the Commission's
Comments make clear that it intends to keep

4. The Commission disagrees. Paragraph (d)(2)
uses the Model Rule language and provides in part
that a lawyer “may counsel or assist a client to make
a good faith effort to determine the validity, scope,
meaning or application of a law, rule, or ruling of a
tribunal.” (emphasis added). Whether it is the
lawyer who make “takes appropriate steps in good
faith” to test the validity of any law, etc., or it is the

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26

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

Comment
on Behalf
of Group?

Rule
Paragraph

Comment

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

that defense, OCTC believes that it should be lawyer who “counsel[s] or assist[s] the client to
in the rule and not in a comment.
make a good faith effort” is immaterial. They mean
precisely the same thing. If anything, the Model
Rule language better reflects that the lawyer may
take such steps only with the knowledge and
consent of the client.
Cmts. [1],
[2]

Cmt. [8]

5. OCTC is also concerned with Comments 1
and 2's statement that an attorney is required
to consult with the client regarding the means
by which the attorney handles the client's
matter. These Comments appear to be
overbroad and could be interpreted to change
current law. The current law is that a lawyer
must advise the client of significant
developments and that the client has the
authority over significant matters.
OCTC
thinks these Comments need clarification so
that only significant means should require
consultation and specific communication; and
that nothing is intended to change current law
about who controls the presentation of cases.

5. The Commission disagrees. See Response to
COPRAC, above. In addition, the Commission has
included a cross-reference to Rule 1.4(a)(2), which
requires that a lawyer “reasonably consult with the
client about the means by which to accomplish the
client’s objectives in the representation.” The lawyer
does not have to consult with the client about every
matter related to the representation.

6. OCTC believes that Comment 8 needs 6. See Response #2, above.
clarification to make clear that limited scope
representations are not permitted unless
allowed by law.

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27

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

Comment
on Behalf
of Group?

Rule
Paragraph

Comment

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

Cmt. [7]

7

Orange County Bar
Association

D

OCTC is also concerned that nowhere in the The Commission has included the following
Comments are attorneys advised that the statement at the end of Comment [7]:
courts have found that even where the scope
Even where the scope of representation is
of the representation is expressly limited, the
expressly limited, the lawyer may still have a
attorney may still have a duty to alert the
duty to alert the client to reasonably apparent
client to reasonable apparent legal problems
legal problems outside the scope of
outside the scope of the representation. (See
representation.
Janik v. Rudy, Exelrod, & Ziefff (2004) 119
Cal.App.4"' 930, 940.)
The foregoing should address OCTC’s concern.

1.2(d)

The OCBA opposes the Commission’s The Commission disagrees. The proposed Rule is
proposed Rule 1.2 and supports the adoption substantially similar to the Model Rule except for
of ABA Model Rule 1.2.
paragraph (d). As explained in the Response to
LACBA, above, the Commission revised MR 1.2(d)
for two reasons: First, the Commission determined it
was appropriate to carry forward the phrase, “or a
violation of any law, rule, or ruling of a tribunal,” from
current rule 3-210.
Second, the Commission
concluded that dividing what is currently two
sentences in rule 3-210, one stating the general rule
and the other the exception, into separate
subparagraphs would make the provision clearer.

Comment
[5]

The OCBA recommends that Comment [5] be
stricken in its entirety.

The Commission disagrees.
Comment [5] is
identical to MR 1.2, cmt. [5]. It is consistent with
legislative policy in Bus. & Prof. Code § 6068(h),
which provides it is the duty of a lawyer: “(h) Never
to reject, for any consideration personal to himself or
herself, the cause of the defenseless or the
oppressed.”

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28

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
No.

Commenter

Position1

8

San Diego County Bar
Association Legal Ethics
Committee
Santa Clara County Bar
Association

A

Rule
Paragraph

A

9

Comment
on Behalf
of Group?

Comment

We approve the new rule in its entirety.

1.2(c)

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

RRC Response

No response necessary.

Approve as proposed with the exception of The Commission disagrees. The Commission voted
subsection (c), where “informed consent” unanimously to adopt the rule which is consistent
should be “informed written consent.”
with the Board of Governors resolution. It does not
appear
that
limited
scope/discrete
task
representation is an "adverse" interest or "conflict"
that necessitates requiring "written" consent. To
some extent, all representations have a limit to the
scope.
For example, someone providing only
"ethics advice" limits the scope of the representation
to this area and would not necessarily have the
expertise to suggest any or all of the civil/procedural
implications of the advice given.
Requiring written consent would operate as an
impediment to access to justice. It places a burden
on legal services attorneys and attorneys who might
be willing to undertake a discrete task for a small
fee, if they must also create a writing in every such
matter as well. This would have a chilling effect and
deter attorneys who may be making little or no
money.
Public protection will not be compromised since
attorneys will have the burden of demonstrating that
they have obtained "informed consent" - they may
choose the obvious method of a writing - but it
should not be discipline if they do not. Other
jurisdictions have not included such a requirement.

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29

Rule 1.2 Scope of Representation.
[Sorted by Commenter]
Comment
on Behalf
of Group?

TOTAL = 9

Agree = 2
Disagree = 3
Modify = 3
NI = 1

Commenter

Position1

Rule
Paragraph

Comment

RRC Response

Cmt. [8]

No.

Add to Comment [8] language that would
clarify that county counsel is governed by
Government Code 999 et. Seq. which gives
them greater authority in limiting the scope of
their representation in certain situations such
as settlements. Specifically, the following is
suggested:

The Commission did not make the requested
change. The Commission has revised the Model
Rule language from which proposed Comment [8] is
derived to add reference to generally-applicable
Rules of Court concerning limited scope
representation. Moreover, that comment already
states that "[a]ll agreements concerning a lawyer's
representation of a client must accord with the Rules
of Professional Conduct and other law," which
would include the referenced Government Code
sections.

“A government lawyer’s authority and
control over decisions concerning the
representation may, by statute or
regulation, be expanded beyond the limits
imposed by paragraphs (a) and (c). See
for example, Cal. Gov. Code Sections 825;
995; 996.”
This language is the same as that used by the
District of Columbia in modifying the ABA
Model Rule version.

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30

Rule 1.2: Scope of Representation

STATE VARIATIONS
(The following is an excerpt from Regulation of Lawyers: Statutes and Standards (2009 Ed.)
by Steven Gillers, Roy D. Simon and Andrew M. Perlman.)
Alaska: Rule 1.2(a) adds: “In a criminal case the lawyer
shall abide by the client's decision…whether to take an
appeal.”
California: Rule 3-210 (Advising the Violation of Law)
provides: “A member shall not advise the violation of any
law, rule, or ruling of a tribunal unless the member believes
in good faith that such law, rule, or ruling is invalid. A
member may take appropriate steps in good faith to test the
validity of any law, rule, or ruling of a tribunal.” Business &
Professions Code 6068(c) requires lawyers to “counselor
maintain those actions, proceedings, or defenses only as
appear to him or her legal or just” except in defending a
criminal case. In addition, §283 of the California Code of
Civil Procedure gives a lawyer express statutory authority to
bind a client in certain situations.
Colorado: Rule 1.2(a) and (c) and the Comment to Rule
1.2 encourage “limited representation” of pro se clients. Rule
1.2(c) provides that a lawyer may limit the scope or
objectives, “or both,” of the representation if the client
consents after consultation, and a lawyer “may provide
limited representation to pro se parties as permitted by
C.R.C.P. 11(b) and C.R.C.P. 311(b).” The Comments to
Colorado Rules 4.2 and 4.3 provide that a pro se party who
is receiving “limited representation” is considered
“unrepresented” for purposes of Rules 4.2 and 4.3.

Connecticut: Connecticut adds the following sentence
to the end of Rule 1.2(a):
Subject to revocation by the client and to the terms of
the contract, a client's decision to settle a matter shall be
implied where the lawyer is retained to represent the
client by a third party obligated under the terms of a
contract to provide the client with a defense and
indemnity for the loss, and the third party elects to settle
a matter without contribution by the client.
In addition, Connecticut adds to Rule 1.2(c) that a client's
informed consent to limit the scope of a representation “shall
not be required when a client cannot be located despite
reasonable efforts where the lawyer is retained to represent
a client by a third party which is obligated by contract to
provide the client with a defense.” An “Amendment Note”
explains that these revisions “address the situation where an
insured/client cannot be located despite diligent and good
faith efforts by both the lawyer and the insurer.”
District of Columbia: D.C. Rule 1.2 generally tracks the
ABA Model Rule, but adds a paragraph (d) providing that a
“government lawyer's authority and control over decisions
concerning the representation may, by statute or regulation,
be expanded beyond the limits imposed by paragraphs (a)

Copyright © 2009, Stephen Gillers, Roy D. Simon, Andrew M. Perlman. All rights reserved. Reprinted with permission.

31

and (c).” D.C. Rule 1.2(f) -- formerly 1.2(e) -- retains
language that the ABA deleted in 2002.
Florida adds the words “or reasonably should know” in Rule
1.2(d). In addition, Florida's Statement of Client's Rights,
which must be provided to every contingent fee client (see
Florida Rule 4-1.5(f)) provides that “[y]ou, the client, have the
right to make the final decision regarding settlement of a
case….”
Illinois includes language from DR 7-102(A)-(B) as
paragraphs (f)-(h), and adds the following paragraph (based
on DR 7-105) as Rule 1.2(e): “A lawyer shall not present,
participate in presenting, or threaten to present criminal
charges or professional disciplinary actions to obtain an
advantage in a civil matter.”
Massachusetts: Rule 1.2(a) provides that a lawyer
“does not violate this rule… by acceding to reasonable
requests of opposing counsel which do not prejudice the
rights of his or her client, by being punctual in fulfilling all
professional commitments, by avoiding offensive tactics, or
by treating with courtesy and consideration all persons
involved in the legal process.”
Michigan deletes Rule 1.2(b) and adds the following
sentence to Rule 1.2(a): “In representing a client, a lawyer
may, where permissible, exercise professional judgment to
waive or fail to assert a right or position of the client.” Where
the official ABA Comment to Rule 1.2 refers to “criminal or
fraudulent conduct,” the Michigan Comment refers to “illegal
or fraudulent conduct.” Michigan places the substance of
Rule 1.2(b) in the Comment to Rule 1.2.
Missouri: In the rules effective July 1, 2008, Rule 1.2(c)
permits the unbundling of legal services, providing as
follows:

A lawyer may limit the scope of representation if
the client gives informed consent in a writing signed
by the client to the essential terms of the
representation and the lawyer's limited role. Use of a
written notice and consent form substantially similar
to that contained in the comment to this Rule 4-1.2
creates the presumptions: (a) the representation is
limited to the lawyer and the services described in
the form, and (b) the lawyer does not represent the
client generally or in any matters other than those
identified in the form…”
Missouri also retains Rule 1.2(e) from the 1983 version
of ABA Model Rule 1.2. (“When a lawyer knows that a client
expects assistance not permitted by the rules of professional
conduct or other law, the lawyer shall consult with the client
regarding the relevant limitations on the lawyer's conduct.”)
New Hampshire: Rule 1.2(e) provides as follows:
(e) It is not inconsistent with the lawyer's duty to
seek the lawful objectives of a client through
reasonably available means, for the lawyer to accede
to reasonable requests of opposing counsel that do
not prejudice the rights of the client, avoid the use of
offensive or dilatory tactics, or treat opposing
counselor an opposing party with civility.
New Hampshire also adds Rule 1.2(f) to govern “limited
representation to a client who is or may become involved in”
litigation, and adds a detailed sample form for “Consent to
Limited Representation” in a Rule 1.2(g).
New York: Compare ABA Model Rule 1.2(a) to New
York DR 7-101(A)(1), which provides that (with limited
exceptions) a lawyer shall not intentionally “[f]ail to seek the
lawful objectives of the client through reasonably available
means permitted by law and the Disciplinary Rules,” and to
ECs 7-7 and 7-8, which provide as follows:

Copyright © 2009, Stephen Gillers, Roy D. Simon, Andrew M. Perlman. All rights reserved. Reprinted with permission.

32

EC 7-7 In certain areas of legal representation
not affecting the merits of the cause or substantially
prejudicing the rights of a client, a lawyer is entitled
to make decisions. But otherwise the authority to
make decisions is exclusively that of the client and,
if made within the framework of the law, such
decisions are binding on the lawyer. As typical
examples in civil cases, it is for the client to decide
whether to accept a settlement offer or whether to
waive the right to plead an affirmative defense. A
defense lawyer in a criminal case has the duty to
advise the client fully on whether a particular plea to
a charge appears to be desirable and as to the
prospects of success on appeal.
EC 7-8… The lawyer may emphasize the
possibility of harsh consequences that might result
from assertion of legally permissible position. In the
final analysis, however, the lawyer should always
remember that the decision whether to forgo legally
available objectives or methods because of nonlegal factors is ultimately for the client and not for
the lawyer….
ABA Model Rule 1.2(b) is the same as the last sentence
of New York’s EC 2-36 (formerly EC 2-27). New York has no
direct counterpart to Rule 1.2(c), but New York's DR 7101(B)(1) permits a lawyer to (1) “exercise professional
judgment to waive or fail to assert a right or position of the
client,” or (2) to “[r]efuse to aid or participate in conduct that
the lawyer believes to be unlawful, even though there is
some support for an argument that the conduct is legal.”
Compare Rule 1.2(d) to New York's DR 7-102(A)(7), which
provides that a lawyer shall not “[c]ounsel or assist a client in
conduct that the lawyer knows to be illegal or fraudulent.”

North Carolina: Rule 1.2(a)(2) and (3) add language
taken from DR 7-101(A)(1) and DR 7-101(B)(1) of the ABA
Model Code of Professional Responsibility, and Rule 1.2(c)
omits the ABA requirement that the client give informed
consent.
Ohio: Rule 1.2(c) provides:
A lawyer who undertakes representation of a
client, other than by court appointment, shall confirm
in writing, within a reasonable time, the nature and
scope of the representation, unless the lawyer has
regularly represented the client or the anticipated
fee from the representation is $500.00 or less. A
lawyer may limit the scope of a new or existing
representation if the limitation is reasonable under
the circumstances and communicated to the client in
writing. Texas omits ABA Model Rule 1.2(b). See
also Texas Rule 1.05 and the annotations following
Rule 1.6 below.
Texas omits ABA Model Rule 1.2(b). See also Texas
Rule 1.05 and the annotations following Rule 1.6 below.
Virginia has moved the language of Rule 1.2(b) to
Comment 3, and Virginia's Comment 1 requires lawyers to
“advise the client about the advantages, disadvantages and
availability of dispute resolution processes that might be
appropriate in pursuing” the client's objectives. Virginia Rule
1.2(d) provides that a “lawyer may take such action on
behalf of the client as is impliedly authorized to carry out the
representation.”
Wisconsin adds Rule 1.2(e) to clarify the obligations of
counsel for an insurer.

Copyright © 2009, Stephen Gillers, Roy D. Simon, Andrew M. Perlman. All rights reserved. Reprinted with permission.

33