Ezel / Ethics Opinions / NYSBA
NYSBA February 5, 1999

Must a lawyer follow a client's instruction to skip title searches the lawyer recommended, and what are the lawyer's options if the lawyer disagrees?

Short answer: The opinion concluded the lawyer should follow the client's lawful instruction to forego title searches once the client is fully informed of the consequences; the decision belongs to the client, and the lawyer's only alternative is permissive withdrawal under DR 2-110(C)(1)(e).

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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 1999
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer drafted a deed for a client taking real property in satisfaction of a preexisting debt. Against the lawyer's advice, the client instructed the lawyer to forego title searches of the parcels. The lawyer asked whether to comply, given the lawyer's professional judgment that skipping the searches was contrary to the client's interest.

The committee concluded the lawyer should follow the instruction. It explained that a client may limit the scope of a representation, here to drafting the deed, as long as the lawyer can still competently represent the client and the client fully understands the consequences of the limitation, citing N.Y. State 604 (1989). The lawyer's duty under EC 7-8 was to make sure the client's decision was informed of the relevant considerations, and under EC 7-5 a lawyer may continue representing a client who chooses a course contrary to the lawyer's advice so long as the lawyer does not thereby assist illegal conduct or a frivolous position.

The committee found nothing illegal in the client's request that would let the lawyer disregard it under DR 7-101(B)(2) or DR 7-102(A)(7). Once the client is fully informed, taking the client's sophistication into account, the decision whether to forego the searches is the client's, not the lawyer's. The lawyer's only alternative was permissive (not mandatory) withdrawal under DR 2-110(C)(1)(e), which allows withdrawal when a client in a non-tribunal matter insists on conduct contrary to the lawyer's advice but not prohibited by the rules. The committee added that the lawyer would be well advised to memorialize the client's instruction and the lawyer's advice about the consequences in writing.

Currency note

This opinion was issued in 1999, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer have to follow a client's instruction the lawyer thinks is unwise?

A: The opinion concluded yes, where the instruction is lawful and the client is fully informed of the consequences: the decision is the client's, and the lawyer is bound to follow it unless the lawyer withdraws.

Q: Can the client limit the lawyer to drafting the deed and nothing more?

A: The opinion said a client may limit the scope of the representation, citing N.Y. State 604, as long as the lawyer can still competently handle the limited task and the client understands the consequences.

Q: What can the lawyer do if uncomfortable proceeding?

A: The opinion identified permissive withdrawal under DR 2-110(C)(1)(e) as the option; that rule permits, but does not require, withdrawal when a client insists on conduct contrary to the lawyer's advice that is not prohibited by the rules.

Background and rules framework

The opinion interpreted DR 2-110(C)(1)(e) (permissive withdrawal), DR 7-101(B) and DR 7-102(A)(7) (limits on assisting illegal or fraudulent conduct), and EC 7-5 and EC 7-8 (the client's authority over decisions after the lawyer's advice) of New York's former Code of Professional Responsibility. The Model Rule analogues are Rule 1.2 (scope of representation and allocation of authority between client and lawyer) and Rule 1.16 (declining or terminating representation). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

  • MR 1.2 (scope of representation; allocation of authority)
  • MR 1.16 (declining or terminating representation)
  • NY DR 2-110(C)(1)(e); DR 7-101(B); DR 7-102(A)(7); EC 7-5; EC 7-8

Other opinions cited:

  • N.Y. State 604 (1989): limiting the scope of a representation
  • N.Y. State 155 (1970): the client's authority over the objectives of representation

See also

Source

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