1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
1.4.
[4] At the outset of a representation, the client may authorize the lawyer to take action on the
client’s behalf without further consultation. Ordinarily, a lawyer may rely on such an advance
authorization. The client may, however, revoke such authority at any time, and a lawyer may not
rely on an advance authorization if there has been such a material change in the circumstances
known to the lawyer that the client’s prior authorization can no longer be regarded as an adequately
informed decision.
[5]In a case in which the client appears to be suffering mental disability, the lawyer's duty
to abide by the client's decisions is to be guided by reference to Rule 1.14.
[6] Legal representation should not be being 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.
[7] 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.
[8] 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.
[9]Other 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.
[10] Paragraph (d) prohibits a lawyer from counseling or assisting a client to engage in
conduct that the lawyer knows or reasonably should know is criminal or fraudulent. 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
questionable conduct and recommending the means by which a crime or fraud might be committed
with impunity.
[11] When the client's course of action has already begun and is continuing, the lawyer's
responsibility is especially delicate. The lawyer may be permitted but is not required by Rule 1.6 to
reveal the client's wrongdoing. In any case, however, the lawyer is required to avoid furthering the
purpose, for example, by suggesting how it 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).
[12] Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
[13] Paragraph (d) applies whether or not the defrauded party is a party to the transaction.
Hence, a lawyer must not participate in a sham transaction; for example, a transaction to effectuate
criminal or fraudulent escape 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 authorities.
[14] 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 thelimitations
on the lawyer’s conduct. See Rule 1.4.
See Rule 1.0(i)
“Consultation” See Rule 1.0(c)
“Knows”See Rule 1.0(f)
“Reasonably Should Know”See Rule 1.0(k)
“Fraudulent”See Rule 1.0(e)
Paragraph (a): There is no direct counterpart to Paragraph (a) in the Tennessee Rules, but
DR 7-101(A)(4) provides that a lawyer "shall not intentionally . . . fail to seek the lawful objectives
of his client through reasonably available means permitted by law” and DR 7-101(B)(4) provides
that a lawyer may, "where permissible, exercise his professional judgment to waive or fail to assert a
right or position of his client." EC 7-7 reads: "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 on his own. But otherwise the authority to make decisions is exclusively that of the client
. . . ." EC 7-8 also states that, "[i]n the final analysis, however, the . . . decision whether to forego
legally available objectives or methods because of nonlegal factors is ultimately for the client . . . .”
Paragraph (c): There is no counterpart to Paragraph (c) in the Tennessee Rules. DR
7-101(A)(4), however, provides that a lawyer "shall not intentionally . . . fail to seek the lawful
objectives of his client through reasonably available means permitted by law . . . ,” leaving
unaddressed the extent to which lawyers and clients may agree that the lawyer will provide a limited
representation.
Paragraph (d): DR 7-102(A)(7) more broadly provides that a lawyer shall not "[c]ounsel or
assist his client in conduct that the lawyer knows to be illegal or fraudulent."
Paragraph (a): Except for the second half of the first sentence, Proposed Rule 1.2(a) tracks
ABA Model Rule 1.2(a). The second half of the first sentence in the Model Rule requires the
lawyer to consult with client about the means to be used to pursue the client’s objectives. The
Committee has changed this so that the duty to consult about means will be addressed in Rule 1.4
as an aspect of the lawyer’s duty to keep the client reasonably informed about the status of the
representations. Also, the Proposed Rule expressly recognizes the lawyer’s implied authority to
take action to carry out the representation, but, in recognition that implied authority can be revoked,
Comment [1] discusses the resolution of disagreements between lawyer and client about the means
to be used to carry out the representation.
Paragraph (b) is identical to ABA Model Rule 1.2(b).
Paragraph (c):Paragraph (c) is related to but significantly modifies Model Rule 1.2(c)
which provides that “a lawyer may limit the objectives of the representation if the client consents
after consultation.”The Proposed Rule makes clear that lawyers and clients are free to limit the
scope of the lawyer’s representation of the client so long as the limited representation is reasonable
under the circumstances.
Paragraph (d):Paragraph (d) is identical to Model Rule 1.2(d) except that we also require
the lawyer to refuse to counsel or assist the client if the lawyer “reasonably should know” that the
client’s conduct is criminal or fraudulent.
The Committee substantially revised Proposed Rule 1.2 so that it would more closely track
the ABA Model Rule.
(B) Before or within a reasonable time after agreeing to represent a client in a
matter, a lawyer who has not regularly represented the client in similar matters shall consult
with the client about the scope and objectives of the representation and the allocation of
decision-making authority between the lawyer and client.
The Committee concluded that such consultation, while desirable, should not be
mandated under pain of professional discipline because of the difficulty of ascertaining the
proper extent of the consultation in a particular case.
agreement with the client permitted by paragraph (D), a lawyer
the circumstances; and
representation and the means by which they are to be pursued; and
(3) shall consult with the client and abide by the client's specific instructions, if any,
with respect to the objectives of the representation and any of the following actions:
rejection of a proposal for settlement of the matter, or the filing of an appeal
from an adverse decision, or
rejection of a proposal with respect to the plea to be entered or sentence to be
imposed, the waiver of a constitutional right or testimonial privilege of the
client, or the filing of an appeal of a conviction or sentence, or
to a material risk of civil or criminal liability or will cause substantial harm to
another person; and
without prior consultation with the client, take any other action the lawyer reasonably
believes will contribute to the achievement of the client’s objectives.
The Committee concluded that the specification of the scope of a representation in
Paragraph (C)(1) was unnecessary and that the requirement in Paragraph (C)(2) that the lawyer
abide by client instructions was ill advised in light of the variety of situations in which such a duty
might be implicated and the importance of lawyers retaining independence of professional
judgment. The Committee also concluded that the list of decisions in Paragraph (C)(3) that must be
made by the client should be conformed with ABA Model Rule 1.2(a).
With respect to disagreements between the lawyer and the client as to the means to be used
to accomplish the client’s objectives, the final draft reflects the Committee’s judgment that such
disagreements should be resolved by the lawyer and the client with the client having the right to
discharge the lawyer if they cannot reach agreement and the lawyer having a similar right to
withdraw from the representation (subject, of course, to the power of the court to deny a request for
permission to withdraw where withdrawal would interfere with the due administration of justice).
Paragraph (b) is identical to Paragraph (A) of the Preliminary Draft. It was moved so that
the paragraphing in the Tennessee rule would be the same as in the ABA Model Rule.
agreement limit the scope and objectives of the representation, limit the means the lawyer
will employ in representing the client, or allocate to either the lawyer or client authority to
make decisions with respect to the representation, provided, however, that no such agreement
shall be effective to
offer of a settlement in a civil proceeding or a plea agreement in a criminal
prosecution, or
client, or
change in circumstances relating to the action that the lawyer has reason to believe
was not anticipated by the client at the time the lawyer was authorized to take the
action, or
tribunal require that the action be taken personally or be specifically approved by the
The Committee concluded that the effectiveness of a delegation of authority by the client to
the lawyer was more appropriately addressed in the Comments. The Committee also concluded,
however, that agreements limiting the scope of a representation should only be permitted if
reasonable under the circumstances.
otherwise take action on behalf of the client which the lawyer knows or reasonably
should know is illegal, fraudulent, or prohibited by the Rules of Professional
Conduct, except that the lawyer may discuss the legal consequences of any
proposed course of conduct with a clientand may counsel or assist a client to make
a good faith effort to determine the validity, scope, meaning or application of the law;
and
prohibited by the Rules of Professional Conduct; and
and
a tribunal requires the lawyer to take; and
tribunal requires such immediate action that the lawyer reasonably believes that the
consent of the client cannot be obtained prior to taking action.
Because Proposed Rule 1.2 no longer requires the lawyer to abide by client instructions
about the means to be used to accomplish the client’s objectives, the Committee concluded that
paragraphs (2) through (5) -- which were exceptions to the duty to abide by client instructions --
were no longer necessary and that the point made by these paragraphs could be incorporated into
the Comment.
Made
The Attorney General has voiced concern about the inconsistency between Rule 1.2(a) and
the statutory authority of the Attorney General pursuant to Tenn. Code Ann. §§ 8-6-109(b)(1) and
20-13-103. The Committee believes that it has adequately addressed this problem in Scope,
Paragraph [4].