CHAPTER 1 - 1-3 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

• Jurisdiction: United States

1-3 Scope of Representation and Allocation of Authority Between Client and Lawyer

1-3:1 General Rule

Though it might seem self-evident, cases belong to clients, not to their lawyers. The general rule is that the client determines the objectives of the representation but the lawyer controls the means of achieving the client's goals.⁵⁷ A lawyer may advise the client not only on the legal aspects of a proposed course of representation but also on moral, social, economic and political considerations.⁵⁸ The balancing of the responsibility between lawyer and client when it comes to framing the representation, identifying goals, and choosing the means to achieve them is as much of an art as it is a science.

The literature on lawyering contains many discussions of the different models of the lawyer, such as "lawyer as godfather," "lawyer as guru," "lawyer as hired gun," or lawyer as "friend or collaborator."⁵⁹ While some urge "client centered lawyering" as the appropriate paradigm,⁶⁰ in some instances the client may want or need a more directive form of counseling.

Prior to the Ethics 2000 iteration of the rules, the default was that the objectives belonged to the client and the means by which they would be realized belonged to the lawyer. With the adoption of the modern iterations of Rules 1.2 and 1.4, a much more collaborative and involved relationship between lawyer and client is anticipated. Of course, some clients may need a more directive approach. Rule 1.14, dealing with clients who may be impaired or unable to make good choices, allows for a fair degree of lawyer involvement when the best interests of a client may be better served by dissuading or overruling choices that are unwise or ill-considered.⁶¹

A lawyer must keep the client reasonably informed with regard to the means employed.⁶² Ultimately, however, strategy decisions concerning the case are the province of the lawyer.⁶³ A lawyer may not counsel or assist the client to engage in conduct that the lawyer knows is criminal or fraudulent.⁶⁴ Where the line exists between appropriate advice and criminal counseling may not be clear. On February 1, 2016, 60 Minutes aired a segment showing 16 lawyers, including a former ABA president, counseling a potential client on how to launder $50 million in bribes. A lawyer may counsel a client on matters governed by state law, even though prohibited by federal law.⁶⁵ A lawyer may act in accordance with implied authority.⁶⁶

1-3:2 Client Autonomy in Specific Circumstances

1-3:2.1 Allocation of Authority: General Rules

The rule specifically addresses three specific circumstances involving the allocation of authority and decision making between lawyer and client. Clients always retain the authority to decide whether to settle a matter.⁶⁷ Ordinarily decisional matters reserved to clients may not be delegated to the lawyer.⁶⁸

Connecticut's rule also provides that in matters where a third party has a contractual obligation to defend and indemnify the client, such as insurance defense contracts, the client's decision to settle is implied if the matter is to be settled within the policy limits.⁶⁹ This rule was created as a result of considerable concern by the insurance defense bar that the Ethics 2000 iterations of Rules 1.2 and 1.4 were unrealistic and unworkable in instances where the lawyer's retention was as a result of an insurance carrier's duty to defend and indemnify. Often, lawyers in such situations are required to enter appearances and file pleadings before they can locate their clients or have a robust discussion with them about the nature and scope of the litigation. The rule reflects the reality that, in most cases involving indemnity, the insurers have a contractual right to resolve claims within the limits of the policy and most insureds do not object.

In criminal cases, the client retains the ultimate authority over decisions of whether to accept an offer, to waive a jury and to testify.⁷⁰ In all other instances, the lawyer's strategic choices with regard to which witnesses to call, what evidence to offer, and what claims to make or waive are going to control.⁷¹ That being said, the lawyer must always respect that a criminal client's Sixth Amendment right to counsel carries a concomitant right to self-representation, a right which would be worthless if a lawyer could always call the tune.⁷²

Ultimately, there is no "one size fits all" rule applicable to the dance between lawyer and client. Different clients and different cases are going to require different approaches. Some clients will arrive well equipped and informed, and most of the discussion may revolve around fees and timing issues. Others may be completely unprepared to make even the most basic decisions, and a long process of education may be needed to bring them to where they are at a point that they can make informed decisions.

The Ethics 2000 iteration of the Model Rules of Professional Conduct, which resulted in many changes to Connecticut's Rules of Professional Conduct in 2006, for the first time incorporated the "informed consent" concept which had for many years been used in the medical field.⁷³ This concept is defined in Rule 1.0(f) as an agreement by a client to a course of conduct after a discussion of risks and alternatives. Informed consent is specifically required only in subsection (c) of Rule 1.2, dealing with unbundled or limited scope representations, as well as Rules 1.6 and 1.7 dealing with conflicts, but, ideally, it should be the model for all lawyer-client communications.

1-3:2.2 Impaired Clients

A lawyer representing a client with an impaired capacity must attempt to maintain normal attorney-client relationships with the client.⁷⁴ If the lawyer believes that the client is subject to harm or cannot make appropriate decisions, the lawyer may take protective action, including seeking the protection of a representative.⁷⁵ In taking protective action, the lawyer may reveal client confidences in so far as necessary to protect the client's interests.⁷⁶

This rule represents an evolution from the traditional understanding that the lawyer must only do as the client wishes, even if the client's decisions were ill-considered or unwise. The history of the modern rule reflects that the impetus for change came from the estate and probate bars who were concerned that elderly clients needed help and guidance in the management of their affairs and who felt that a more "paternalistic" approach to such clients might be a better model.

In earlier iterations, Rule 1.14 and its predecessors provided that, in circumstances concerning impaired clients, the lawyer was to treat the client as any other and, to the extent possible, maintain a normal attorney-client relationship. This remains the rule.⁷⁷ The most recent iteration of the rule does allow...