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Rule 1.2: Scope of Representation

ABA RULE 1.2   


Adopted, Effective Jan. 1, 2008

CLIENT-LAWYER RELATIONSHIP
Rule 1.2: Scope of Representation
and Allocation of Authority Between Client and Lawyer

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

(b) 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) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent  In providing limited representation, the lawyer's responsibilities to the client, the court and third parties remain as defined by these Rules as viewed in the context of the limited scope of the representation itself; and court rules when applicable.

(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.

(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 counsel or an opposing party with civility.

(f)  In addition to requirements set forth in Rule 1.2(c),

(1)  a lawyer may provide limited representation to a client who is or may become involved in a proceeding before a tribunal (hereafter referred to aslitigation), provided that the limitations are fully disclosed and explained, and the client gives informed  consent to the limited representation.  The form set forth in section (g) of this Rule has been created to facilitate disclosure and explanation of the limited nature of representation in litigation.  Although not prohibited, the provision of limited representation to a client who is involved in litigation and who is entitled as a matter of law to the appointment of counsel is discouraged.

(2)  a lawyer who has not entered an applicable limited appearance, and who provides assistance in drafting pleadings, shall advise the client to comply with any rules of the tribunal regarding participation of the lawyer in support of a pro se litigant.

(g) Sample form.

CONSENT TO LIMITED REPRESENTATION

Limited Representation

To help you in litigation, you and a lawyer may agree that the lawyer will represent you in the entire case, or only in certain parts of the case.  "Limited representation" occurs if you retain a lawyer only for certain parts of the case.

When a lawyer agrees to provide limited representation in litigation, the lawyer must act in your best interest and give you competent help.  However, when a lawyer and you agree that the lawyer will provide only limited help,

  • the lawyer DOES NOT HAVE TO GIVE MORE HELP than the lawyer and you agreed.
  • the lawyer DOES NOT HAVE TO help with any other part of your case.

If you and a lawyer have agreed to limited representation in connection with litigation, you should complete this form and sign your name at the bottom.  Your lawyer will also sign to show that he or she agrees.  If you and the lawyer both sign, the lawyer agrees to help you by performing the following limited services:

1.  ð  Provide you general advice about your legal rights and responsibilities in connection with potential litigation concerning:

_____________________________________________________________________________

_____________________________________________________________________________

which advice shall be provided as:

ð  consultation at a one-time meeting, or

ð  consultation at an initial meeting and further meetings, telephone calls or correspondence (by mail, fax or email) as needed, or as requested by you

2.  ð  Assist in the preparation of your court or mediation matter regarding ________________________

_________________________________________________________________________________ by:

                                                [Case name]

ð  explaining court procedures

ð  reviewing court papers and other documents prepared by or for you

ð  suggesting court papers for you to prepare

ð  drafting the following court papers for your use: ____________________________________________________________

ð  legal research and analysis regarding _____________________

ð  preparation for court hearing regarding ________________________________________________; or

ð  preparation for mediation

ð  other: ______________________

______________________________

______________________________

3. ð  Representing you in Court regarding __________________________________________,

                                                                                     [Case name]

but only for the following specific matter(s):

ð  Motion for __________________

______________________________

ð  Temporary hearing

ð  final hearing

ð  trial

ð  other: _____________________

______________________________

4. ð  Other limited service:_______________________________________________

______________________________________________________________________________



Consent

I have read this Consent to Limited Representation Form and I understand what it says.  As the lawyer’s client, I agree that the legal services specified above are the only legal help this lawyer will give me.  I understand and agree that:

  • the lawyer who is helping me with these services is not my lawyer for any other purpose and does not have to give me any more legal help
  • the lawyer is not promising any particular outcome
  • because of the limited services to be provided, the lawyer has limited his or her investigation of the facts to that necessary to carry out the identified tasks with competence and in compliance with court rules
  • if the lawyer goes to court with me, the lawyer does not have to help me afterwards, unless we both agree in writing

I agree the address below is my permanent address and telephone number where I may be reached.  I understand that it is important that my lawyer, the opposing party and the court handling my case, if applicable, be able to reach me at this address.  I therefore agree that I will inform my lawyer or any Court and opposing party, if applicable, of any change in my permanent address or telephone number.

A separate fee agreement ð  was   ð  was not also signed by me and my lawyer.

________________________________    __                ____________________________________
[print or type your name]  Client’s Name        [print or type your full mailing street/apartment address]

_________________________________    _                ____________________________________
[sign your name]                                                       [print or type City, State and Zip Code]


_________________________________
_                  ____________________________________ 
                        Date                                                    [print or type your Phone Number]

 

__________________________________                ____________________________________
[print or type your name]  Lawyer’s Name                      [print or type name of law firm]


__________________________________                   ____________________________________
[sign your name]                                                               [print or type Street, City, State and Zip Code]

__________________________________                ____________________________________ 
                        Date                                                    [print or type your Phone Number]


NEW HAMPSHIRE COMMENT


1.  This rule differs from the ABA Model Rule by:

Deleting the last two sentences of ABA Model Rule 1.2 (a).

Adding a second sentence to Rule 1.2( c).

Adding a new 1.2(e).

Adding a new 1.2(f).

Adding a new 1.2(g).

2.   The deleted sentences of ABA Model Rule 1.2 (a) provide as follows: 

“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.”

    The particular binding client decisions articulated in the third sentence of Rule 1.2(a) are by no means exclusive.  There will obviously be other important client decisions that will be binding upon the lawyer depending upon the fact specific circumstances of any representation. The Model Rule sentences correctly state those particular client decisions that are binding upon the lawyer.  However, specifically including these in the Rule may be wrongly construed by a lawyer to be the onlybinding decisions that can be made by a client.  A lawyer must always carefully consider all client requests or decisions, in light of all relevant factors, including but not limited to, the particular fact pattern, type of representation, a client’s social and economic considerations, and the scope of representation and earlier decisions reached during the representation.  See, e.g., Restatement Third, The Law Governing Lawyers§ 21 (“Allocating the Authority to Decide Between a Client and a Lawyer”), § 22 (“Authority Reserved to a Client”), and § 23 (“Authority Reserved to a Lawyer”) (2000).

3.  The second sentence of Rule 1.2(c) confirms that lawyers providing limited representation are bound by all professional responsibility rules.  The Rule also recognizes that these ethical obligations will need to be interpreted, or analyzed, within the context of the limited representation.  One example of such an obligation could be the duty, under Rule 1.1(c)(3), to "develop a strategy, in collaboration with the client, for solving the legal problems of the client."  A client who retains an attorney for limited purposes may simply want the lawyer to research and provide the applicable law in a specific area, thereby making Rule 1.1(c)(3) inapplicable.  Conversely, the lawyer's duty pursuant to Rule 4.1(a) not to make false statements to third persons is the type of fundamental obligation that would remain applicable regardless of the limits placed on the scope of representation. 

4.  The added provision in Rule 1.2 (e), restates a rule revision that has been adopted (in various forms) in several other states.  Especially in light of a growing concern by New Hampshire  practicing lawyers for the professionalism of lawyers, it is appropriate to make a distinction between following client objectives during representation, and the general civility and professionalism expected by all practicing New Hampshire attorneys.  The lawyer should also be guided by The New Hampshire Lawyer Professional Creed, adopted April 4, 2001, by the New Hampshire Bar Association Board of Governors (which can be found under “NH Practice Guidelines” on the Bar’s website, ).

5. A new section (f) is added to apply specific rules for the limited representation of a client in a litigation setting, which would require full disclosure and informed consent. A recommended written Consent to Limited Representation form for compliance with this provision, while not mandated, is provided in section (g). Subsection (f)(2) requires the lawyer to advise the client to comply with whatever applicable court rules may apply, with respect to any "ghost written" pleadings prepared by that lawyer who is not actually involved, by appearance, in the particular litigation.


ABA RULE 1.2

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