A lawyer is representing a client in a complex patent infringement case. The client, a small startup, is highly knowledgeable about their technology but is unfamiliar with legal strategy or court procedures. The lawyer, during an initial consultation, explains the litigation process, potential outcomes, and the division of responsibility. The client agrees that the lawyer will make all strategic decisions, while the client will provide technical expertise and information. Is this allocation of authority permissible under the Model Rules of Professional Conduct?
- AYes, but only if the lawyer can demonstrate that the client lacks the capacity to make strategic decisions independently.
- BYes, provided the client gives informed consent and the allocation is reasonable.
- CNo, because the client must always retain ultimate authority over all strategic decisions in litigation.
- DNo, because a lawyer cannot delegate any strategic decision-making authority to a client.
Show answer & explanationAnswer & explanation
Correct answer: B. Yes, provided the client gives informed consent and the allocation is reasonable.
Model Rule 1.2(a) states that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. However, the rule also allows for a lawyer to take action on behalf of the client as impliedly authorized to carry out the representation. Clients can, with informed consent, authorize the lawyer to make certain strategic decisions, especially in complex areas where the lawyer has expertise.
Why the other options are wrong
- A. The client's capacity is not the issue here; it's about the client's ability to, with informed consent, delegate authority over means.
- C. While clients control objectives, they can, with informed consent, grant the lawyer authority over certain strategic means.
- D. The rule allows for implied authority regarding means, and explicit informed consent for delegation of strategic decisions is permissible.
Allocation of Authority (Means)
While clients retain ultimate authority over the objectives of representation (e.g., settlement, plea), they can, with informed consent, permit the lawyer to make decisions regarding the 'means' by which those objectives are pursued (e.g., legal strategy, procedural tactics).
- Client controls objectives (Rule 1.2(a)).
- Lawyer controls means, but must consult with client.
- Client can delegate decision-making over means with informed consent.
Memory trick: Client sets the Compass, Lawyer steers the Ship (with client's nod).