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Rule and Commentary Regarding the Scope of a Lawyers Representation in Kentucky.

KENTUCKY BAR ASSOCIATION
RULES OF THE SUPREME COURT OF KENTUCKY
PRACTICE OF LAW
SCR 3.130(1.2) Scope of representation
(a) A lawyer shall abide by a client's decision concerning the objectives of representation,
subject to paragraphs (c), (d) and (e), 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 objectives of the representation if the client consents after
consultation.
(d) 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.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of
Professional Conduct or other law, the lawyer shall inform the client regarding the relevant
limitations on the lawyer's conduct.
HISTORY: Adopted by Order 89-1, eff. 1-1-90
Commentary
Supreme Court
1989:
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] In a case in which the client appears to be suffering mental disability, the lawyer's duty
to abide by the client's decision is to be guided by reference to Rule 1.14.
Independence from Client's Views or Activities
[3] 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
[4] 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.
[5] 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 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
[6] 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.
[7] 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 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.
[8] Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
[9] Paragraph (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. 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.