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, except as stated in paragraph (e), 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) A lawyer may counsel or assist a client regarding conduct expressly permitted by state or local law that conflicts with federal law, provided that the lawyer counsels the client about the potential legal consequence of the client's proposed course of conduct under applicable federal law.

(f) 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.

(g)  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 as litigation), 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.

(h) 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. ___ Provide you general advice about your legal rights and responsibilities in connection with potential litigation concerning:
_________________________________________________________________________________

_________________________________________________________________________________

which advice shall be provided as:

                   ___  consultation at a one-time meeting, or

                   ___  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.  ___  Assist in the preparation of your court or mediation matter regarding

______________________________________________________________________ by:
                                                  [Case name]

 _____  explaining court procedures             ____  legal research and analysis
                                                                       regarding _________________

                                                                      __________________________

____ reviewing court papers and               ____ preparation for court hearing
         other documents prepared by                    regarding ___________________
         or for you
                                                                   ____________________________

____ suggesting court papers for               ____ preparation for mediation
         you to prepare

____ drafting the following court                ____ other: ______________________
         papers for your use:
                                                                     ___________________________
         ___________________________
                                                                    ____________________________
        ____________________________

    3. _____  Representing you in Court regarding _____________________________,
                                                                                        [Case name]
but only for the following specific matter(s):

            ____  Motion for ____________________________________________

            ____  Temporary hearing

            ____  final hearing

            ____  trial

            ____  other:

             ________________________________________________________________

             ________________________________________________________________

    4.  ____ 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 (____ was / ____ 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]

Ethics Committee 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 the phrase, "except as stated in paragraph (e) to 1.2(d).
        Adding a new 1.2(e).
        Adding a new 1.2(f).
        Adding a new 1.2(g).

Adding a new 1.2(h).

    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 only binding 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.  A new section (e) is added to allow a lawyer to counsel or assist a client regarding conduct expressly permitted by state law that conflicts with federal law.  The new section is consistent with similar amendments or revisions to Rule 1.2 in other states that have legalized therapeutic cannabis or the recreational use of marijuana.  States that have adopted a regulatory approach to marijuana’s public health and commercial applications nonetheless contravene the Controlled Substances Act and other federal law.  Under the former version of Rule 1.2, a lawyer counseling a client to engage, or assist a client, in conduct that the lawyer knows violates federal law was in violation of section (d).  The new section allows the lawyer to counsel or assist a client engaging in the conduct without violating the New Hampshire Rules of Professional Conduct, despite the conflict with federal law, provided that the lawyer also counsels the client about the potential legal consequences under applicable federal law.

   5.  The added provision in Rule 1.2 (f), 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, www.nhbar.org).

    6. A new section (g) 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 (h). Subsection (g)(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.
 

2004 ABA MODEL CODE COMMENT
RULE 1.2  SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

 Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, 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. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.

Independence from Client's Views or Activities

[5] Legal representation should not be 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.

Agreements Limiting Scope of Representation

[6] 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.

[7] 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.

[8] All 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.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. 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 course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing 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). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance 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.

[13] 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 the limitations on the lawyer's conduct. See Rule 1.4(a)(5).