It is the Committee’s understanding that the inquirer is defense counsel for an individual who was the driver of a car involved in a one-vehicle accident in which her husband and one son were injured and another son killed. The inquirer has been retained in this role by the client’s liability insurer.

The inquirer’s client’s husband has instituted suit against her. The client is said to have $25,000/50,000 (presumably per claim and in the aggregate, respectively) in liability insurance limits. 1 The client is the sole defendant and it is the inquirer’s belief that there are no liability defenses.

The client has expressly instructed the inquirer not to “vigorously defend against my family’s injuries” and not to hire expert witnesses. At the same time, the inquirer is concerned because “the insurance policy obligates me to defend the insured.”

The inquirer seeks an opinion from the Committee as to the extent of the defense he owes his client at time of trial.

The Committee interprets the inquiry as relating to the extent to which, under the Pennsylvania Rules of Professional Conduct, (the “Rules”) the inquirer is bound to follow the client’s directions as respects the handling of the law suit.

In the Committee’s opinion, inquirer’s responsibilities in this situation are governed by Rule 1.2 (a) which states, in pertinent part: “Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.” As Rule 1.2 (a) itself notes, the provisions of this Rule are subject to Rule 1.4 (a) (2) which obligates a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” 2 Also germane to the inquirer’s concerns is Rule 1.2(c) under which such a consultation would necessarily involve an explanation to the client of the extent to which the inquirer’s representation of her interests in this matter might be limited by the terms of the insurance contract and an informed consent thereto under Rule 1.8 (f). It is the Committee’s further understanding that the client has discussed with the inquirer and understands the potential adverse consequences of such a “limited defense” position and has directed the inquirer to continue to proceed as directed. Under the circumstances, therefore, it is the Committee’s opinion that the inquirer is bound to honor the client’s decision in this regard.

Should the inquirer conclude that the course of action dictated by his client to be one with which he is in “fundamental disagreement”, the inquirer may seek to withdraw as counsel. See Rule 1.16 (b) (4). Whether a particular disagreement between a client and an attorney is “fundamental” is not directly addressed by the Rules, although, Comment [2] to Rule 1.2 may provide some guidance:

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3). 3

By the same token, the inquirer should also be aware that there is authority to the effect that mere refusal to follow the lawyer’s advice is not necessarily adequate grounds for withdrawal, particularly if prejudice to the client would result from withdrawal or the decision is one that is properly left to the client in the first place. See, Annotated Model Rules of Professional Conduct, (American Bar Association Center for Professional Responsibility, Sixth Ed. 2007), citing, inter alia, to Nichols v. Butler, 953 F.2d 1550 (11th Cir. 1992) and N.M. Ethics Op. 1995-1 (1995). 4

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.

1 The inquirer discusses a possible declaratory judgment against the insurer of the vehicle involved in the accident which is said to have belonged to the husband’s employer who, in turn, has denied permissive user status to the husband. Although this fact is clearly part of the dynamics at work here, it is not immediately relevant to this analysis.

2 Subparagraph (d) of Rule 1.2 deals with criminal or fraudulent activity on the part of the client and is thus inapplicable here.

3 Unlike the Rules themselves, the Comments do not have the force of law.

4 The inquirer has expressed some concern that the liability insurance policy under which he has been retained by the insurer creates an obligation to defend the insured. While the import of any particular policy language on the inquirer's obligations in beyond the purview of the Committee, the Committee notes, in keeping with its previous citation to Rule 1.8 (f), that even assumingarguendo, that the client’s expressed wishes and the insurer’s proposed approach to the defeof the case were at odds, it is likely that the inquirer’s responsibilities would continue to be governed by Rule 1.2 (a), particularly given the constraints of Rule 5.4 (“Professional Independence Of A Lawyer”), paragraph (c) which states that:

A lawyer shall not permit a person who recommends, employs pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services
The Committee wishes to note, however, that in the event the inquirer should come under instructions from the insurer to pursue a course of action contrary to the client’s expressed wishes, it may become necessary - just as with a withdrawal occasioned by a “fundamental disagreement” - for the inquirer to seek to withdraw from the representation. For further discussion on this issue, the Committee commends to the inquirer’s attention prior discussions of the obligations of a lawyer involved in the “tripartite relationship”; i.e., as between an insured client and his/her insurer, as, for example ABA Formal Op. 08-450, and PBA Formal Op. 96-196.