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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania Legal Ethics

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:

1.2:101      Model Rule Comparison

In 1987, the Commonwealth of Pennsylvania adopted the exact language of MR 1.2 including the commentary thereto.

1.2:102      Model Code Comparison

Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states that "In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client...." EC 7-8 states that "In the final analysis, however, the ... decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client ..... In the event that the client in a non-adjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment." DR 7-101(A)(1) provides that "A lawyer shall not intentionally ... Fail to seek the lawful objectives of his client through reasonably available means permitted by law.... A lawyer does not violate this Disciplinary Rule, however, by ... avoiding offensive tactics." Rule 1.2(b) and Rule 1.2(c) have no counterpart in the Code. With regard to Rule 1.2(d), however, DR 7-102(A)(7) provides that a lawyer shall not "Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR 7-102(A)(6) provides that a lawyer shall not "Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-106(A) provides that "A lawyer shall not ... advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal ... but he may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5 states that "A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor." With regard to Rule 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdraw from representation if a client "insists" that the lawyer engage in "conduct that is illegal or that is prohibited under the Disciplinary Rules." DR 9-101(C) provides that "A lawyer shall not state or imply that he is able to influence improperly ... any tribunal, legislative body or public official."

1.2:200   Creating the Client-Lawyer Relationship

Primary Pennsylvania References: PA Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA 31:101, ALI-LGL 26-29A, Wolfram 9.2

1.2:210      Formation of Client-Lawyer Relationship

Pennsylvania courts have developed the following four part test to determine whether an attorney-client relationship exists:

1) the purported client sought advice or assistance from the attorney;
2) the advice sought was within the attorney's professional competence;
3) the attorney expressly or impliedly agreed to render such assistance; and
4) it is reasonable for the client to believe the attorney is representing her.

Cost v. Cost (Super. 1996). The purported client's subjective belief that an attorney-client relationship exists is not sufficient, absent the other three factors, to create the attorney-client relationship with the corresponding duty. Atkinson v. Haug (Super. 1993).

1.2:220      Lawyer's Duties to Prospective Client

A lawyer has a duty to keep secret all confidences disclosed by a potential client. Pa. Eth. Op. 95-155B (1995). However, an attorney is not obligated to disclose to a potential client that the attorney already represents a party adverse to the potential client. Pa. Eth. Op. 95-155A. The attorney must disclose the fact of the contact by the adverse potential client to the existing client. Id.

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

[The discussion of this topic has not yet been written.]

1.2:240      Client-Lawyer Agreements

An attorney may not prospectively limit liability through either an agreement with the client or business form of the law practice. See Pa. Eth. Op. 93-142 (1993) (finding that business trust can be an acceptable organization form for a law practice if the deed of trust contains a statement which clearly states that the individual officers of the trust are personally liable for all negligent acts).

Pennsylvania permits non-refundable retainers and minimum fees, but both of these funds must be deposited in the attorney's escrow account and draw down as the attorney bills appropriate fees to the client. Pa. Eth. Op. 95-100 (1995).

1.2:250      Lawyer's Duties to Client in General

For clients who refuse to pay and lawyer's motion for leave to withdraw is denied by the court, diligent and competent representation is required. Phila. B.A. Prof. Guid. Comm., PA Eth. Op. 93-2 (1993).

1.2:260      Client's Duties to Lawyer

There is no Pennsylvania case law or ethics opinions on this issue.

1.2:270      Termination of Lawyer's Authority

In Pennsylvania, the client has an absolute right to terminate the attorney-client relationship regardless of any contractual relationship between the two parties. Kenis v. Perini Corp. (Super. 1996).

1.2:300   Authority to Make Decisions or Act for Client

Primary Pennsylvania References: PA Rule 1.2(a)
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA 31.301, ALI-LGL 32-34, 37-41, Wolfram 4.4, 4.6

1.2:310      Allocating Authority to Decide Between Client and Lawyer

In Pennsylvania, the client has the absolute right to direct the litigation. Senyshyn v. Karlak (1973). A lawyer, acting as attorney for a client, lacks either the implied or apparent authority to do an unauthorized act which results in the surrender of a substantive right. Natasiak v. Scoville Enterprises, Inc. (Super. 1993).

1.2:320      Authority Reserved to Client

In Pennsylvania, the client has the absolute right to direct the litigation. Senyshyn v. Karlak (1973). A lawyer, acting as attorney for a client, lacks either the implied or apparent authority to do an unauthorized act which results in the surrender of a substantive right. Natasiak v. Scoville Enterprises, Inc. (Super. 1993).

Criminal matters.

For a criminal defendant's plea decision, see, Commonwealth of Pennsylvania v. Cross (1993) (where defendant was determined competent to stand trial, defense counsel acted properly by yielding to defendant's decision to plead innocence rather than insanity or diminished capacity.) For evidential offerings, see, Commonwealth of Pennsylvania v. Sam (1993) (Where criminal defendant in death penalty case directed counsel not to introduce evidence of mitigating circumstances; attorney had no right to override client's decision made knowingly and intelligently with full knowledge of the consequences.)

1.2:330      Authority Reserved to Lawyer

Actions within the scope of an attorney's authority derived from the client are binding on the client. Weiner v. Lee (Commw. 1995); also Walck v. Commonwealth Dep't of Transp. Bureau of Driver Licensing (Commw. 1993)). The basis for this result is the principal-agent relationship between the attorney and the client. It is a basic principle of Pennsylvania agency law that an agent can bind the principal if the agent is acting within his authority. Weiner.

1.2:340      Lawyer's Authority to Act for Client

Actions within the scope of an attorney's authority derived from the client are binding on the client. Weiner v. Lee (Commw. 1995); also Walck v. Walck v. Commonwealth Dep't of Transp. Bureau of Driver Licensing (Commw. 1993). The basis for this result is the principal-agent relationship between the attorney and the client. It is a basic principle of Pennsylvania agency law that an agent can bind the principal if the agent is acting within his authority. Weiner.

Implied authority.

Authority may be implied from a client's more general directive if the means to follow that directive require the grant of such authority. Edwards v. Born, Inc. (3d Cir. 1986) (lawyer may have implied actual authority to settle claims for personal injury plaintiffs who repeatedly told lawyer it was his job to arrive at a settlement figure).

Apparent authority.

A lawyer's authority to make substantive decisions on behalf of a client may be presumed by virtue of the fact that he or she represents the client in court. See, e.g., Edwards v. Born, Inc. (3d Cir. 1986).

1.2:350      Lawyer's Knowledge Attributed to Client

An attorney's statements during a judicial proceeding which are within the scope of the attorney's authority are attributed to the client. Walck v. Commonwealth Dep't of Transp. Bureau of Driver Licensing (Commw. 1993).

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

There is no Pennsylvania case law on this issue.

1.2:370      Appearance Before a Tribunal

[The discussion of this topic has not yet been written.]

1.2:380      Authority of Government Lawyer

There is no Pennsylvania case law or ethics opinions on this issue.

1.2:400   Lawyer's Moral Autonomy

Primary Pennsylvania References: PA Rule 1.2(b)
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram 10.4

There is no Pennsylvania case law or ethics opinions on this issue.

1.2:500   Limiting the Scope of Representation

Primary Pennsylvania References: PA Rule 1.2(c)
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA 31:301, ALI-LGL 30, Wolfram 5.6.7

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

An attorney is permitted to limit the scope of representation if the client consents after full disclosure of the circumstances and consultation. Pa. Eth. Op. 94-172 (1994). For example, a criminal defense attorney may limit his or her representation of a client to all matters up and through a trial as long as the attorney consults with the client and terms of the representation are clearly disclosed. Id.

1.2:600   Prohibited Assistance

Primary Pennsylvania References: PA Rule 1.2(d)
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary: ABA/BNA 31:301, ALI-LGL 151, Wolfram 13.3

1.2:610      Counseling Illegal Conduct

Pennsylvania has clearly stated that an attorney may not assist any unlawful or illegal conduct. Office of Disciplinary Counsel v. Campbell (1975); Pa. Eth. Op. 95-110 (1995). The recommended punishment for such conduct is disbarment. Campbell.

1.2:620      Assisting Client Fraud

Assisting client fraud--in general.

So long as a lawyer does not further a continuing fraud, representation of a client concerning past events will not assist the client in committing or perpetuating a fraud. Phila. B. A. Prof. Guid. Comm., PA Eth. Op. 91-39 (1992).

Fraudulent claim admitted by client.

When a client admits that their claim is fraudulent, the attorney should withdraw the representation and the claim. Further, the attorney has a duty to inform the client that they should not pursue this claim and that if the client finds other representation the attorney may be compelled to make disclosures to future attorneys and the opposing party pursuant to PA-R 1.6. Phila. B. A. Prof. Guid. Comm., PA Eth. Op. 91-22 (1991).

1.2:630      Counseling About Indeterminate or Uncertain Law

There is no Pennsylvania case law or ethics opinions on this issue.

1.2:700   Warning Client of Limitations on Representation

Primary Pennsylvania References: PA Rule 1.2(e)
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA 31:307, ALI-LGL 165,

There is no Pennsylvania case law or ethics opinions on this issue.

1.2:800   Identifying to Whom a Lawyer Owes Duties

Primary Pennsylvania References: PA Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA 31:101, ALI-LGL 72, 73, 155, 156A, Wolfram 7.2

1.2:810      Prospective Clients [see 1.2:220]

[The discussion of this topic has not yet been written.]

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

[The discussion of this topic has not yet been written.]

1.2:830      Representing an Entity [see also 1.13:200]

[The discussion of this topic has not yet been written.]

1.2:840      Representing a Fiduciary [see also 1.13:520]

An attorney does not represent an estate (or trust), or the heirs of an estate (or beneficiaries of a trust), but only the executor (or trustee) or other personal representative of the estate. Dorsett v. Hughes (Super. 1986).

1.2:850      Class Action Clients

An attorney who files a class action complaint owes the entire class a fiduciary duty and can not act contrary to the interests of the class. In re General Motors Corp. Pick-up Truck Fuel Tank Products Liability Litigation (3rd Cir. 1995).