Formation and scope - Scope, objective, and means of the rep...

Learning Outcomes

After reading this article, you will be able to distinguish between the client’s and lawyer’s roles in setting the objectives and means of representation, identify how the scope of representation can be limited, and apply the rules governing decision-making authority in both civil and criminal matters. You will also understand the ethical requirements for limited scope agreements and the consequences of exceeding or failing to follow client instructions.

MPRE Syllabus

For the MPRE, you are required to understand the principles governing the formation and scope of the client-lawyer relationship. This includes the division of authority between lawyer and client, the ability to limit the scope of representation, and the lawyer’s obligations when following or refusing client instructions. You should be prepared to:

• Distinguish between the client’s authority over objectives and the lawyer’s authority over means.
• Identify which decisions must be made by the client in civil and criminal cases.
• Recognize when and how the scope of representation may be limited by agreement.
• Apply the rules for accepting, declining, or terminating representation.
• Analyze the lawyer’s obligations when a client has diminished capacity.
• Understand the consequences of acting without proper client consent or exceeding the agreed scope.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a civil case, who decides whether to accept a settlement offer?
   1. The lawyer
   2. The client
   3. The court
   4. The opposing party
2. Which of the following is true regarding limiting the scope of representation?
   1. The lawyer may unilaterally limit the scope without client consent.
   2. The client must provide informed consent to any limitation.
   3. The court must approve all limitations.
   4. Scope cannot be limited under any circumstances.
3. In a criminal case, which decision is reserved exclusively for the client?
   1. Whether to call a particular witness
   2. Whether to waive a jury trial
   3. Which legal arguments to raise
   4. Whether to object to evidence
4. If a lawyer accepts a matter but later finds the client’s instructions repugnant, what must the lawyer do?
   1. Continue the representation regardless
   2. Withdraw only if the client consents
   3. Seek permission to withdraw if withdrawal will harm the client
   4. Ignore the client’s instructions

Introduction

The client-lawyer relationship is shaped by clear rules about who controls the objectives of the representation and who decides the means to achieve those objectives. The Model Rules of Professional Conduct require lawyers to abide by their client’s decisions about the goals of the representation, while lawyers generally control the strategy and methods used to reach those goals. However, the scope of representation can be limited by agreement, provided the limitation is reasonable and the client gives informed consent.

Key Term: Scope of Representation
The boundaries of the legal services the lawyer will provide to the client, which may be full or limited by agreement.

The division of authority is not absolute. Certain decisions—such as whether to settle a civil case or enter a guilty plea—are reserved for the client. Other decisions, such as procedural tactics or legal arguments, are typically within the lawyer’s discretion. Understanding these distinctions is essential for ethical and effective practice.

Client Authority vs. Lawyer Authority

The Model Rules draw a line between the objectives of representation (the ends) and the means (the methods). The client has the ultimate authority to determine the objectives, such as whether to settle, pursue an appeal, or enter a plea. The lawyer decides how to pursue those objectives, including which motions to file or which witnesses to call.

Key Term: Objectives of Representation
The client’s goals or desired outcomes in the legal matter, such as settlement, acquittal, or specific relief.

Key Term: Means of Representation
The lawyer’s choices about strategy, procedure, and tactics used to achieve the client’s objectives.

Decisions Reserved for the Client

• In civil matters, the client decides whether to accept a settlement.
• In criminal cases, the client decides whether to plead guilty, waive a jury trial, or testify.

Decisions Reserved for the Lawyer

• Legal strategy, such as which claims or defenses to assert.
• Procedural matters, such as scheduling or order of witnesses.

Limiting the Scope of Representation

A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. This allows for “unbundled” or limited-scope services, such as handling only one aspect of a case.

Key Term: Limited Scope Representation
An agreement between lawyer and client to restrict the lawyer’s services to specific tasks or issues, rather than full representation.

A limitation must not result in ineffective assistance or violate the lawyer’s duty of competence. The client must understand the risks and alternatives.

Client with Diminished Capacity

When a client’s capacity to make decisions is impaired, the lawyer must, as far as possible, maintain a normal relationship. If necessary to protect the client, the lawyer may seek appointment of a guardian or take other protective action.

Key Term: Diminished Capacity
A client’s inability to make adequately considered decisions due to mental impairment, minority, or other reasons.

Termination and Withdrawal

A lawyer must withdraw if continuing would result in a violation of the rules or law, if the lawyer’s physical or mental condition impairs the ability to represent the client, or if discharged by the client. Withdrawal is permitted in other circumstances, such as when the client insists on a course of action the lawyer finds repugnant or fundamentally disagrees with, provided withdrawal can be accomplished without material harm to the client.

Worked Example 1.1

A client hires a lawyer to negotiate a contract but wants to handle any litigation personally. The lawyer agrees in writing to limit the representation to contract negotiation. Later, the client asks the lawyer to file a lawsuit. The lawyer declines, citing the limited scope agreement. Is the lawyer’s conduct proper?

Answer:
Yes. The lawyer may limit the scope of representation if the limitation is reasonable and the client gives informed consent. The lawyer is not required to provide services outside the agreed scope.

Worked Example 1.2

A criminal defendant instructs her lawyer to reject all plea offers and insists on going to trial. The lawyer believes a plea deal is in the client’s best interest but follows the client’s instruction. Who has the final authority?

Answer:
The client. In criminal cases, the decision to accept or reject a plea offer is reserved for the client, even if the lawyer disagrees.

Worked Example 1.3

A lawyer is handling a civil lawsuit. The client instructs the lawyer not to grant any extensions to the opposing party. The opposing lawyer requests a short extension for personal reasons. The lawyer grants it without consulting the client, and the client objects. Was the lawyer’s action proper?

Answer:
Yes, if granting the extension does not prejudice the client’s rights. Lawyers may make decisions on procedural matters, such as scheduling, unless the client’s rights are affected.

Exam Warning

On the MPRE, be alert for questions where the lawyer acts without client consent on matters reserved for the client, such as accepting a settlement or plea. These are common traps.

Revision Tip

Practice distinguishing between decisions reserved for the client and those for the lawyer. Memorize which decisions require client consent.

Key Point Checklist

This article has covered the following key knowledge points:

• The client controls the objectives of representation; the lawyer controls the means.
• Certain decisions—settlement, plea, jury waiver, testimony—are reserved for the client.
• The scope of representation can be limited by agreement if reasonable and with informed consent.
• Lawyers must withdraw if continuing would violate law or rules, or if discharged.
• Clients with diminished capacity require special attention; protective action may be needed.
• Acting without client consent on reserved decisions may lead to discipline.

Key Terms and Concepts

• Scope of Representation
• Objectives of Representation
• Means of Representation
• Limited Scope Representation
• Diminished Capacity