The Client-Lawyer Relationship · 10-16% of the exam
4.2.2Decision-making authority: actual and apparent (Rule 1.2 cmt.)
Why
A lawyer acts on someone else's behalf, and the people across the table cannot see the instructions. If outsiders had to verify authority at every step, nothing settled through counsel would be reliable. Agency doctrine buys that reliability, and the cost of it has to land somewhere.
Plain English
Actual authority is what the client expressly directed or what carrying out the representation implies. Apparent authority rests on a manifestation from the client; retaining a lawyer creates it, except for the decisions reserved to the client. Where apparent authority exists without actual authority, the client is bound and may hold a malpractice claim. For a third party, apparent authority runs until actual or constructive notice that it ended.
Context. The lawyer is the client's agent; the retainer creates apparent authority for most acts but not for client-reserved decisions, and apparent authority ends when the third party learns authority has terminated.
The rule (Rule 1.2 cmt. and agency principles):
Actual authority: two kinds.
- Express: the client explicitly directed the lawyer to act.
- Implied: authority necessary to carry out the representation.
Apparent authority: arises when a court or third party reasonably believes the lawyer has authority based on a manifestation from the client. Retaining a lawyer creates apparent authority, except for decisions always reserved to the client: accepting a settlement, entering a plea, waiving a jury trial, and testifying in criminal cases.
If apparent authority exists but actual authority is lacking: the client is bound by the lawyer's action but may have a malpractice claim against the lawyer.
When authority ends: matter concludes; lawyer fired; client or lawyer dies; lawyer becomes unable to continue. For a third party, apparent authority persists until that party has actual or constructive notice of its termination. On termination of actual authority, the lawyer must promptly notify relying third parties.
Trap
Questions · 1
Q 01ch04-e07
Question 1 of 1 · Rule 1.2
Attorney appeared for Client in a boundary dispute with a neighboring farm. On a Friday Client telephoned Attorney, ended the engagement, and told Attorney to do nothing further; neither of them told opposing counsel or the court. On Monday, with no word of the discharge having reached anyone, Attorney signed a stipulation withdrawing Client's objection to the farm's survey and conceding that the fence line ran where that survey placed it. Client had never approved that concession and would have refused it. Opposing counsel knew nothing of the discharge and relied on Attorney's continuing role in the case. The court accepted the stipulation and entered judgment giving the disputed strip to the farm. Is Attorney subject to civil liability?
Keys 1 to 4 choose.