§4.3 RPC 1.2

• Jurisdiction: Washington

III. RPC 1.2

We have chosen to discuss the legal principles that define the attorney-client relationship together with the Rule of Professional Conduct that addresses the "scope" of that relationship because of the obvious interconnection between the two.⁴⁵ Now we turn to a discussion of the allocation of responsibility within the attorney-client relationship. This is primarily addressed in RPC 1.2.

RPC 1.2 was adopted verbatim from the ABA model rules, but Washington has added a comment to the effect that agreements limiting the scope of representation should consider the applicability of RPC 4.2.⁴⁶ The precursors to RPC 1.2 were set out under Canon 7 ("zealous representation") to the 1972 Code of Professional Responsibility (CPR).⁴⁷ Most of the content of RPC 1.2 can be found in those sections of the prior code, so that the changes in RPC 1.2 are largely ones of form, emphasis, and organization, rather than substance. A few changes were made to RPC 1.2 by the ABA in 2002, and these have been adopted in Washington as well.

In Washington, we also have legislation that purports to govern the authority of an attorney.⁴⁸ Most of that legislation is quite consistent with the Rules of Professional Conduct, because it merely confirms the authority of the court to examine the lawyer's authority when a question has been raised and to set aside an action that was unauthorized⁴⁹ or establish procedures for a change or substitution of counsel.⁵⁰ So a conflict of authority to regulate is not likely to arise. But as should be clear from Chapter 1 of this book, given the court's position that it has the exclusive right to regulate the practice of law, if there were a serious inconsistency between the statute and the requirements of the Rules of Professional Conduct or other court rules, it is likely that the court rules would preempt the legislation.

In at least one instance, the court seems to have recognized the problem. RCW 2.44.040 purports to authorize a change of counsel by a lawyer "at any time" "[u]pon his own consent" and to prohibit a change of counsel by a client if the prior lawyer's "charges" have not been paid.⁵¹ Both aspects of this rule could conflict with RPC 1.16, which governs withdrawal by a lawyer, and so the court has written into RPC 1.16 its intention that the withdrawal rule should govern "notwithstanding" the statute.⁵² But no similar language was added to expressly preempt another section of the statute that purports to confer authority on an attorney to enter into binding agreements for a client and receive money on behalf of a client.⁵³ Such authority could well conflict with RPC 1.2(a). Thus, a complete account of lawyers' authority must include a look not only at the Rules of Professional Conduct but also at Chapter 2.44 RCW, as many of the cases are decided by means of statutory interpretation.

A. RPC 1.2(a): Allocation of Decision-Making Responsibility

Having presupposed the law defining the formation of the attorney-client relationship, RPC 1.2 first attempts to explain how responsibility within the relationship is to be allocated. It does so by drawing a sharp distinction between the "objectives of representation" and "the means by which they are to be pursued," stating that the lawyer must "abide by a client's decisions" concerning the former, but need only "consult with" the client as to the latter.⁵⁴ Having made this statement, the rule then identifies four specific items on which a lawyer must defer to the client: (1) whether to settle a matter; (2) the plea to be entered in a criminal case; (3) whether to waive a jury trial in a criminal case; and (4) whether the client will testify in a criminal case.⁵⁵

The list raises almost as many questions as it answers. First, because a decision whether to waive a jury trial or testify in a criminal case would usually be considered a question of "means" rather than "objectives," are these examples intended as exceptions to the more general ends/means distinction? Are there other exceptions that are necessary? Or is the distinction not to be taken seriously? Second, in this day of plea bargaining, is the plea to be entered in a criminal case an issue of means or ends? Is a criminal defendant's "objective" acquittal? Or minimum punishment? In short, how are we to distinguish between ends and means? Third, because the rule instructs that a client's waiver of a jury trial or the right to testify need only be deferred to in a criminal case, is the intended implication that the lawyer need not defer to such decisions in the civil arena? Is a client's right to a jury trial in a civil case—guaranteed by the U.S. Constitution—any less important?⁵⁶

The 1972 CPR avoided this kind of sharp ends/means dichotomy to some extent, directing a lawyer "to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules," and only reserving to the lawyer the right, "[w]here permissible, [to] exercise his professional judgment to waive or fail to assert a right or position of his client."⁵⁷ The prior code also made it clear that an attorney's decision-making authority was limited to "areas ... not affecting the merits of the cause or substantially prejudicing the rights of a client,"⁵⁸ and admonished attorneys that "the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for [the attorney]."⁵⁹ In doing so, the code avoided many of the questions raised by the attempt at a sharp ends/means dichotomy. In general, the Restatement adopts the approach of the prior code and also avoids the sharp ends/means dichotomy.⁶⁰

The original ABA comment to MRPC 1.2 came closer to reflecting the tone of the prior code and the Restatement when it emphasized that "[b]oth lawyer and client have authority and responsibility in the objectives and means of representation" and that "[a] clear distinction between objectives and means sometimes cannot be drawn."⁶¹ The ABA comment also clarified that "[i]n questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected."⁶²

Even without the clarification of the prior commentary, however, it is clear from the text of the current rule that a lawyer is not even entitled to act on a "means" question without first consulting with the client. There are at least three reasons why consultation is important even on questions over which the lawyer may have ultimate responsibility. First, given the inherent difficulties in distinguishing between means and objectives, the attorney has no way of discovering how important a particular means, method, or tactic is to the client—i.e., how close it is to one of the client's objectives—unless the attorney consults on it. The client may, for example, prefer to forgo a particular means, even at the risk of losing an objective. Before making a decision, the lawyer should know this in order to assess what the client's objectives really are. Second, the client may have a valuable contribution to make on means as well as ends decisions. Often the client will know opposing parties or particular business or family dynamics better than the attorney, or know them in different ways. This may enable the client to foresee problems in the means the attorney is contemplating. Finally, it is the client's case and the client has a unique perspective because of that. In sum, the client has a voice to which the attorney should listen whenever possible because it is the client's case, the client has a right to be heard, and the lawyer may learn something of value. This duty to consult is reinforced by the duty imposed by RPC 1.4 to communicate with the client. It also promotes the commitment made in the introduction to the RPC to "the dignity of the individual and the capacity through reason for enlightened self-government."⁶³

RPC 1.2(a) now cross-references to RPC 1.4, which specifies simply that the lawyer shall "reasonably consult with the client about the means by which the client's objectives are to be accomplished."⁶⁴ Elaborating on this, the comment to RPC 1.4 states that what constitutes "reasonable consultation" will depend on the importance of the matter and the feasibility of consulting with the client.⁶⁵ In some cases, prior consultation may be required; in others, such as during a trial when immediate action is required, prior consultation may not be feasible, but the client must thereafter be advised of actions taken on the client's behalf.⁶⁶ The Restatement also makes this duty to consult clear and usefully elaborates on the concept of consultation itself.⁶⁷

In addition, the comments to RPC 1.2 address the possibility of disagreement between lawyer and client on the means to be used, but it is open to question how helpful the comments are.

Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used ... 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.⁶⁸

But when push comes to shove, the rule "does not prescribe how such disagreements are to be resolved."⁶⁹ The lawyer is warned that "[o]ther law ... may be applicable and should be consulted" and advised to try to work it out with the client.⁷⁰ Failing this, the client may always fire the lawyer, or the lawyer may withdraw.

The authority given to lawyers over "means" or "strategic" decisions in the rules is generally reflected in the case law. Subject to agreements and instructions to the contrary, "a lawyer may take any lawful measure within the scope of representation that...