Concept
Dividing Decision-Making Authority
Scope, objective, and means of the representation
Scope, Objectives, and Means
Dividing Decision-Making Authority
Model Rule 1.2(a) answers the question every engagement raises, who decides, by drawing a line between ends and means. 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.”1 The client decides what the representation is for; the lawyer, after consulting the client, decides how to pursue it. Paragraph (a) opens by yielding to paragraphs (c) and (d), so the client’s authority over objectives has limits: the scope of the engagement may be narrowed by informed consent, and the lawyer must stay out of crime and fraud.2
The line has to protect two interests that pull in opposite directions. Some decisions matter so much to a client that the client’s autonomy must control them. Lawyers, meanwhile, bring professional skill that would be wasted if a client could reopen every technical or tactical choice. The line must also be one that a disciplinary rule can enforce. The ends-means division is imperfect, because some matters do not sort neatly into either category, but no better line that a disciplinary rule could enforce has been found. The duty to consult adds a safeguard: the client learns how the work is proceeding and can object, even though the lawyer keeps the choice of methods.3
Rule 1.2(a) then takes a short list of decisions out of the ends-means analysis and gives them to the client: whether to settle and, in a criminal case, the plea, the jury waiver, and whether to testify.4 When lawyer and client cannot resolve a disagreement, the relationship itself usually supplies the remedy. The client can discharge the lawyer, and the lawyer can ordinarily withdraw over a fundamental disagreement.5 The sections below follow the allocation in order: the client’s objectives, the lawyer’s means, the point at which a means decision starts to look like an objective, and the decisions the rule reserves to the client.
Client Sets Objectives
The first clause of Rule 1.2(a) provides that, subject to paragraphs (c) and (d), “a lawyer shall abide by a client’s decisions concerning the objectives of representation.”6 An objective is the purpose the client wants the representation to accomplish, the reason the client came to a lawyer in the first place. Abide asks for more than listening: the lawyer must follow the client’s decision about what the representation is for, even when the lawyer would have chosen a different goal. The lawyer still advises, because a client decides better with counsel, but the decision stays with the client.
The rule takes this shape because realizing the client’s objectives is the very reason the relationship exists, and a lawyer who substitutes a different goal has stopped doing the job the client hired the lawyer to do.7 The rule also matches the client’s practical power. A client ordinarily controls the relationship by discharging, or threatening to discharge, the lawyer, while the lawyer ordinarily may withdraw over a fundamental disagreement.8 A lawyer allowed to override objectives would gain little, since the client could end the engagement, and would risk quietly pursuing a different goal while the client believes the original one is being pursued. The duty to abide brings the disagreement into the open, where the two can resolve it or part ways.
Because the client defines the objectives, they need not take the form of simple success in litigation or in a transaction.9 A client may want a quick resolution, a quiet one, or one that preserves a business relationship. Each is a legitimate objective that the lawyer must pursue, even when the lawyer would measure success by the size of the recovery. Do not treat the largest possible recovery as a default objective that governs unless the client overrides it.
The duty to abide has a built-in limit. Rule 1.2(a) operates subject to paragraph (d), the limit on crime and fraud that this chapter takes up below.10 The lawyer serves the client’s lawful purposes, so a purpose the lawyer knows to be criminal or fraudulent lies outside what the duty to abide reaches.
A second qualification concerns the client’s ability to decide at all. If a client appears to have diminished capacity that may impair the capacity to decide about the objectives of the representation, the lawyer should look to Rule 1.14, which lies outside this section.11 Absent a real question about capacity, the adult client’s stated objective controls.
Lawyer Chooses Means
Once the client has fixed the objectives, the second clause of Model Rule 1.2(a) governs the methods of pursuing them. The lawyer “shall consult with the client as to the means by which they are to be pursued” and “may take such action on behalf of the client as is impliedly authorized to carry out the representation.”13 The lawyer must consult about means but need not submit to the client’s preferences. The client stays informed and can object, and the choice of methods rests with the lawyer.14 Consultation comes first; professional judgment then controls the decision.
The allocation reflects a judgment about who is better placed to make tactical choices. Clients ordinarily defer to their lawyers’ knowledge and skill on technical, legal, and tactical matters, and lawyers can work as professionals only if they have broad freedom to choose legal means without fear of being second-guessed afterward.15 A lawyer who expected every drafting decision or motion to be reopened would drift toward the choice easiest to defend to the client instead of the one likeliest to succeed, and a client without legal training gains little from a veto over choices the client cannot evaluate. For the same reason, a lawyer need not adopt a measure merely because the client wants it.16 In civil litigation the means include how to frame a pleading, how to conduct and respond to discovery, whether to file dispositive motions, and which claims or defenses to emphasize. In a criminal defense they include how to present exhibits, which witnesses to call, and when to object and, just as importantly, when to stay quiet.17
The duty to consult is a duty of reasonable effort, and what is reasonable varies along two dimensions. Rule 1.4(a)(2) calls for reasonable consultation about the means of accomplishing the client’s objectives, and how much is reasonable depends on the circumstances, including time constraints and setting, and on the significance of the matter, meaning its likely importance to the client.18 Ample time and high importance call for a real conversation; scarce time and low importance may call for none. A hearsay objection in mid-trial marks the far end of the range. When opposing counsel asks a question that may violate the hearsay rules, the lawyer cannot stop the proceeding to confer: by the time the lawyer had explained the rule, its exceptions, and the risks and benefits of objecting, the examiner would have moved on and the question would be ancient history.19 The lawyer must act on professional judgment alone, and doing so complies with the rule because consultation is not feasible at that moment.
Rule 1.2(a) also recognizes implied authority, meaning authority the client has never spelled out but that the lawyer needs to carry the representation forward. The lawyer may take innocuous actions, such as making calls and drafting letters to schedule routine interviews and depositions, without first obtaining the client’s approval.20 A representation consists of many small steps, and requiring approval for each would stall the work and burden the client with decisions that matter to no one. The word “innocuous” marks the boundary. Scheduling a deposition carries no meaningful risk or expense, while a step that could change what the client ends up with falls outside what the client can fairly be taken to have authorized silently.
When a client disagrees with a choice of means, the rule supplies a sequence of steps rather than a winner. The lawyer consults, the two try to reach agreement, and if they cannot, the relationship supplies the exits: the client ordinarily may discharge the lawyer, and the lawyer ordinarily may withdraw over a fundamental disagreement.21 The lawyer also need not carry out an instruction the lawyer reasonably believes to be contrary to professional rules or other law, and a client who persists in a wrongful instruction leaves the lawyer with withdrawal as the remaining course.22 Because these exits exist, the lawyer’s authority over means does not trap the client in a representation run in a way the client cannot accept.
Authority over means does not include the freedom to decide a significant strategic question in silence. In Bowman v. Gruel Mills Nims & Pylman, LLP, a malpractice action arising from a retirement-benefit dispute, a federal court applied Michigan’s counterpart to Model Rule 1.4 to a lawyer’s decision not to press ERISA claims. The court concluded that the decision, whether or not it was a protected exercise of professional discretion, was a key strategic decision that needed to be discussed with the client.23 The court’s concern was communication: even a sound judgment to drop a claim had to be raised with the client, because dropping a claim shrinks what the client can recover. The mid-trial objection and the abandoned claim sit at opposite ends of the consultation standard. The objection is fleeting and minor, so consultation is infeasible and unnecessary, while the claim is weighty and can be discussed at leisure, so consultation is expected. Consultation keeps deference from turning into secrecy. The next section takes up the harder cases, in which the significance of a decision pushes control toward the client.
When Means Become Objectives
The ends-means division sorts most decisions cleanly, but the comments to Model Rule 1.2 concede that when a chosen strategy may carry significant non-legal consequences, “a clear distinction between objectives and means sometimes cannot be drawn.”25 A decision that looks like a method on paper can reach parts of the client’s life that have nothing to do with legal technique, and then the label “means” no longer tells you who should decide. Borderline facts call for a method of reasoning that the clean examples of pleadings, discovery, and objections cannot supply.
Three features push a decision toward the client: significant risk, substantial expense, and the potential for serious harm to third persons. Most clients would not want a lawyer to act alone, without first receiving the client’s permission, when an action entails any of them.26 The deference that justifies lawyer control of means rests on the lawyer’s legal and tactical skill, and that skill gives the lawyer no special claim to decide how much of the client’s money, safety, or relationships to put on the line. The same idea works as a sliding scale: the more central a matter is to the client’s own interests, the more it takes on an ends-like quality.27 Both formulations describe a matter of degree, so you apply them by asking how much the decision affects the client beyond the lawsuit and how much it affects other people.
Witness selection shows the shift within a single decision. Choosing which witnesses will testify is ordinarily a legal means left to the lawyer. But suppose the lawyer plans to call the client’s young child as a key witness, and the client objects out of concern for the child facing examination and cross-examination. The client’s concern for another person arguably limits the objectives of the representation.28 The client has in effect redefined the goal as winning without putting the child through that ordeal. The lawyer should defer, and the lawyer’s remaining role is advice, such as explaining what the case may lose without the testimony.
The lawyer’s other trial choices in that same case stay with the lawyer. The order in which witnesses are called and the decision whether to let a particular question pass without objection are pure tactics, which put nothing at stake for the client beyond the case itself and expose no third person to harm.29 A client who wants to approve each of those decisions asks for more than the rule gives, and the lawyer may decline after consulting as far as time permits. Both sets of choices concern who testifies and how, so the subject matter cannot be what separates them. The difference lies in what the choice costs someone other than the litigant and what it costs the client outside the courtroom.
In borderline cases, then, the more central a decision is to the client’s interests, the more the lawyer should obtain the client’s permission rather than act unilaterally. Asking costs a short conversation, while guessing wrong costs the client control over something that mattered and, because the allocation is enforced through discipline, can expose the lawyer to a charge of exceeding the lawyer’s authority. When a client’s reluctance about a particular step is known from the start, the parties can sometimes build it into the engagement itself, because a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.30 That device gets its own treatment later in this chapter. The permission requirement does not swallow the lawyer’s authority over means. Most decisions, like the mid-trial objection, remain tactics, and the requirement attaches only where significant consequences reach the client’s own life or other people.
Settlement Decisions
The first decision that Rule 1.2(a) lifts out of the ends-means division is settlement: “A lawyer shall abide by a client’s decision whether to settle a matter.”32 The sentence stands on its own, apart from the clause on objectives and means, so you do not have to classify a settlement decision as an end or a means before you know who makes it. A civil client decides whether to settle and on what basis, and the lawyer’s role is to inform and advise.33 The choice stays with the client even when the lawyer thinks it unwise.
A settlement ends the client’s claim or defense on terms that only the client can value. A lawyer can estimate what a jury might award, but how much certainty is worth, how much a quick end to the dispute matters, and whether a particular term is tolerable are judgments about the client’s own affairs. A lawyer who could accept or reject offers for the client would be deciding the outcome of the representation itself, which is the objective the client defines. The lawyer’s opinion of what the case is worth is advice to give; the decision that advice informs remains the client’s.
The same authority runs in the other direction. A client who wants to reject an offer the lawyer regards as generous holds the identical power, and the lawyer may urge acceptance but may not accept over the client’s refusal. What the lawyer does control is the negotiation itself. Under the means clause the lawyer, after consulting the client, chooses how to bargain and may take impliedly authorized steps to carry the representation forward.34 Reserving settlement to the client therefore leaves the lawyer’s bargaining judgment alone and takes away only the final act of accepting or rejecting a deal.
An exam stem that says a lawyer was “authorized to negotiate” describes means authority and does not hand over the power to close the deal. A lawyer who accepts an offer the client has not approved, whether through a specific instruction or a limit the client set in advance, has made the client’s decision for the client.
The autonomy principle is harder to protect when one lawyer represents several clients and the other side makes an offer that depends on all of them. Model Rule 1.8(g) provides that a lawyer who represents two or more clients “shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client.”36 A settlement is aggregate when its terms are interdependent: the offer is all-or-nothing, so refusal by any one client rejects the whole and the litigation continues for everyone, including the clients who favored the deal.37 The criminal counterpart is a package plea, in which jointly charged defendants must all plead guilty or nolo contendere for a designated sentence, and the prosecutor tries every defendant if any one insists on trial.38 The rule does not forbid the lawyer to negotiate such a deal, whether by proposing it or by responding to a proposal. It requires the lawyer to obtain advance consent from each client before taking part in making it.39
Two reasons support the rule. The first is the lawyer’s conflict of interest. The lawyer owes equal loyalty to every client in the group and must give each one balanced and candid advice about the offer, which becomes difficult or impossible when the package favors one client over another, because advice that serves one client may cost another.40 The second is autonomy. Every client holds the right to accept or reject a settlement, and the signed writing confirms that each client actually agreed instead of being steered by one-sided counsel.41 Consent is informed only if each client sees the whole deal, so the lawyer must disclose the existence and nature of all the claims or pleas involved and of each person’s participation in the settlement.42 That includes the details of every other client’s participation, such as each client’s contribution or receipt, the resolution of any criminal charges, and any nonmonetary benefit that favors one client over the others.43 The lawyer may not withhold any of it, for example by declining to tell one client the nature or amount of the offer to another.44
The hypothetical shows why a majority cannot substitute for individual consent: the lawyer has no authority to accept for the dissenter, however many claimants favor settlement.45 Whether clients may agree at the outset to be bound by a majority or supermajority vote on an aggregate settlement is contested. Rule 1.8(g) does not authorize such an advance waiver, and the courts that have addressed the question have rejected it.46 A reform proposal from the American Law Institute would let a claimant, after the lawyer explains the alternatives, agree in advance to be bound by a substantial majority, on the theory that the current rule lets holdout claimants control a settlement and demand a premium for their approval.47 Defenders of the existing rule answer that it protects clients against inadequate settlements and unfair allocations, since a large group with minor injuries could otherwise impose an equal split on claimants who are far more seriously hurt.48 Until a rule change adopts the proposal, the safe answer on an exam is that each client must individually consent.
Rule 1.8(g) thus applies Rule 1.2(a) and does not depart from it. Each client in the group still holds the settlement decision individually, and the extra requirements of disclosure and a signed writing protect that decision from the distortions that one lawyer’s divided loyalties can create. The next section turns to the personal decisions that Rule 1.2(a) reserves to a criminal defendant, which include the plea.
Criminal Defendant’s Personal Decisions
Settlement is not the only decision that Rule 1.2(a) lifts out of the ends-means division. The same paragraph provides that 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.”50 The rule assigns each of the three to the client by name, so you do not first have to classify it as an objective or a means. The lawyer’s ordinary authority over legal and tactical choices simply stops at these decisions, and what remains is the lawyer’s duty to advise before the client chooses.
The rule reserves these three because of what each one does to the accused. A plea decides whether there will be a trial at all, a jury waiver decides who will find the facts, and the choice to testify decides whether the accused will give a sworn account and submit to cross-examination. In every case the consequences fall on the defendant’s liberty, and none can be undone once the case has moved forward. A lawyer’s strategic preference, however well informed, would put one person’s judgment in place of another’s on a choice whose cost only the second person will bear. The allocation is therefore usually described as leaving these intensely personal choices to the defendant alone, once the lawyer has fully informed the defendant.51
The phrase “after consultation with the lawyer” keeps the lawyer’s expertise in the process. The lawyer knows how strong the prosecution’s evidence looks, how a plea offer compares with the likely sentence after conviction, and how a fact-finder or a cross-examination might go, while the defendant ordinarily knows none of this. The lawyer’s duty has two mandatory parts: first explain and give candid advice, which may be as forceful as honesty requires, and then abide by what the defendant decides, even when the lawyer thinks the choice unwise. If the disagreement is deep, the usual exits remain available, since the client may discharge the lawyer and the lawyer may ordinarily withdraw over a fundamental disagreement.52 Overriding the defendant is not among the options.
The authority runs in both directions. A defendant who wants to take a plea the lawyer regards as unnecessary has the same power, and the lawyer who thinks the case is winnable can say so but must still abide. The jury-waiver decision works the same way: a lawyer who believes a judge would be a more receptive audience may urge a bench trial but cannot waive the jury over the defendant’s objection, and a lawyer who prefers a jury must honor a defendant’s choice of a bench trial. The decision whether to testify follows the identical pattern. The lawyer may explain the risks of cross-examination and recommend silence, but the defendant decides whether to take the stand.
Exams like to ask who controls the decisions that arise within one criminal trial, and the answer divides the trial in two. In a criminal defense the lawyer ordinarily decides, consistent with the client’s objectives, how to present exhibits, which witnesses should testify, and when to object and, just as importantly, when to let a question pass.53 Those are technical and tactical choices, the territory where clients defer to the lawyer’s skill and where the lawyer needs freedom from second-guessing. The trap is to treat the accused as one more witness the lawyer may select. The lawyer’s authority over witnesses covers everyone other than the client, because whether the accused speaks under oath is the reserved decision and not a question of evidentiary tactics.
Together with settlement, these three decisions complete the list that Rule 1.2(a) reserves to the client. A short memory aid keeps the list together: STEW, for Settle, Testify, Enter a plea, Waive a jury. The first belongs to every client, and the other three apply in a criminal case. Everything else about the trial stays within the lawyer’s professional judgment, subject to the duty to consult as far as time and the importance of the matter allow.