Supreme Court of Missouri
en banc

In re:

Repeal of subdivision 4-1.2, entitled "Scope of Representation," and the Comment thereto, of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of a new subdivision 4-1.2, entitled "Scope of Representation," and the Comment thereto.

1.  It is ordered that effective July 1, 2008, subdivision 4-1.2 and the Comment thereto be and the same are hereby repealed and a new subdivision 4-1.2 and Comment thereto adopted in lieu thereof to read as follows:

4-1.2  SCOPE OF REPRESENTATION

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to Rule 4-1.2(c), (f) and (g), and shall consult with the client as to the means by which they are to be pursued.  A lawyer shall abide by a client's decision whether to accept an offer of settlement of 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.

(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 representation if the client gives informed consent in a writing signed by the client to the essential terms of the representation and the lawyer's limited role.  Use of a written notice and consent form substantially similar to that contained in the comment to this Rule 4-1.2 creates the presumptions:


(1) the representation is limited to the lawyer and the services described in the form, and

(2) the lawyer does not represent the client generally or in any matters other than those identified in the form.  

(d) The requirement of a writing signed by the client does not apply to:

(1) an initial consultation with any lawyer, or

(2) pro bono services provided through a nonprofit organization, a court-annexed program, a bar association, or an accredited law school,

(3) services provided by a not-for-profit organization funded in whole or in part by the Legal Services Corporation established by 42 USC Sec. 2996b.

(e) An otherwise unrepresented party to whom limited representation is being provided or has been provided is considered to be unrepresented for purposes of communication under Rule 4-4.2 and Rule 4-­4.3 except to the extent the lawyer acting within the scope of limited representation provides other counsel with a written notice of a time period within which other counsel shall communicate only with the lawyer of the party who is otherwise self-represented.  

(f) 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.

(g) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.


COMMENT


Scope of Representation   

[1] Both lawyer and client have authority and responsibility in the objectives and means of representation.  The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations.  Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives.  At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so.  A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking.  In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.  Law defining the lawyer's scope of authority in litigation varies among jurisdictions.

[2] A lawyer may assist a self-represented litigant on a limited basis without undertaking the full representation of the client on all issues related to the legal matter for which the lawyer is engaged.  Any doubt about the scope of representation should be resolved in a manner that promotes the interests of justice and those of the client and opposing party.  Use of a written agreement for limited representation is required, except as provided in this Rule 4-1.2.  If a written agreement is not required by Rule 4-1.2, the better practice is for the attorney to memorialize in writing the contact and services provided.  The initial consultation ends when the lawyer and the client agree that the lawyer will or will not undertake the representation.  A lawyer may provide legal advice during an initial consultation. The lawyer who undertakes limited representation should explain to the client the risks and benefits of limited representation during consultation on limiting the scope of representation.  An agreement for limited representation does not exempt a lawyer from the duty to provide competent representation; however, the limitation of the scope of representation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation as required in Rule 4­-1.1.  

The following is a notice and consent to limited representation form that is appropriate:


Notice and Consent to Limited Representation

To help you with your legal matters, you, the client, and _______________, the lawyer, agree that the lawyer will limit the representation to helping you with a certain legal matter for a short time or for a particular purpose.

The lawyer must act in your best interest and give you competent help. When a lawyer and you agree that the lawyer will provide limited help:

• The lawyer DOES NOT HAVE TO GIVE MORE HELP than the lawyer
   and you agreed; and

• The lawyer DOES NOT HAVE TO HELP WITH ANY OTHER PART of
   your legal matter.

While performing the limited legal services, the lawyer:

• Is not promising any particular outcome; and

• Is relying entirely on your disclosure of facts and will not make any  
  independent investigation unless expressly agreed to in writing in this
  document.

If short-term limited representation is not reasonable, a lawyer may give advice, but will also tell you of the need to get more or other legal counsel.

I, the lawyer, agree to help you by performing the following limited services listed below and no other service, unless we revise this agreement in writing.

[INSTRUCTIONS: Check every item either Yes or No - do not leave any item blank. Delete all text that does not apply.]:

I will charge to the Client the following costs: _____________________


__________________________________________________________


I will charge to the Client the following fee for my limited legal representation:


____________________________________________________________


______________________________________ Date: ______________
(Type Lawyer's name)



CLIENT'S CONSENT


I have read this Notice and Consent form and I understand it.  I agree that the legal services listed above are the ONLY legal services to be provided by the lawyer.  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 more legal help.  If the lawyer is giving me advice or is helping me with legal or other documents, I understand the lawyer will stop helping me when the services listed above have been completed.  The address I give below is my permanent address where I can be reached.  I understand that it is important that the court handling my case and other parties to the case be able to reach me at the address after the lawyer ends the limited representation.  I therefore agree that I will inform the Court and other parties of any change in my permanent address.


In exchange for the Lawyer's limited representation, I agree to pay the attorney's fee and costs described above.


Sign your name: ______________________________________________


Print your name: ______________________________________________


Print your address: ____________________________________________


Phone number: ____________________  FAX: _____________________  


Message Phone: _______________ Name: _________________________


Email address: ________________________________________________

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

Independence From Client's Views or Activities

[4] 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.

Services Limited in Objectives or Means

[5] The objectives or scope of services 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.  For example, a retainer may be for a specifically defined purpose.  Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles.  When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.  The terms upon which representation is undertaken may exclude specific objectives or means.  Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.

[6] An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.  Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 4-1.1 or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.

Criminal, Fraudulent and Prohibited Transactions

[7] A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct.  The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action.  However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct.  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.

[8] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate.  The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 4-1.6.  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 supposes is legally proper but then discovers is criminal or fraudulent.  Withdrawal from the representation, therefore, may be required.

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

[10] Rule 4-1.2(d) applies whether or not the defrauded party is a party to the transaction.  Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability.  Rule 4-1.2(d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise.  The last clause of Rule 4-1.2(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.

2.  It is further ordered that the portions of this Court's December 21, 2007, order relating to subdivision 4-1.2(c) and the Comment to subdivision 4-1.2 are vacated.

3.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

4.  It is ordered that this order be published in the South Western Reporter.

Day – to – Day

_____________________________
MARY R. RUSSELL
Acting Chief Justice