Tuesday, March 12, 2013

"Accept the Offer"

Stephen Gillers, Regulation of Lawyers
"Accept the Offer"

This problem raises the issue of whether an attorney is bound by the client’s decision to accept a settlement offer.  In the facts of the problem, the client instructs the attorney to accept the low-ball alimony offer from her spouse’s attorney in a supposedly no-fault divorce proceeding.  The client’s attorney believes she will regret this decision due to accepting far below what she is entitled to from the divorce.  After multiple failed discussions attempting to sway the client, the attorney does not know how to proceed and is requesting advice. 

Despite the attorney’s experience and belief, he must abide his client’s instructions and accept the offer.  Rule 1.2 of the ABA Model Rules of Professional Conduct specifically states that “a lawyer shall abide by a client’s decision[ ] concerning the objectives of representation 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 settle a matter.”  Case law on the issue echoes that the client has the final say on the issue of settlement. See Wood v. McGrath, North, Mullin & Kratz P.C., 589 N.W.2d 103 (Neb. 1999)(“The decision to settle a controversy is the client’s. . . . The attorney’s responsibilities to the client may not be satisfied. . . by unilaterally deciding the issue.”).  The instant case is no exception, and the attorney is bound by his client’s decision to settle.

In terms of future liability for not achieving an optimal settlement, the attorney would not have to be concerned of potential malpractice claims as he adequately communicated his concerns with the client pursuant to Rule 1.4. Rule 1.4(b) of the ABA Rules states that “a lawyer shall explain a matter to the extent reasonably  necessary to permit the client to make informed decisions regarding the representation.”

 The attorney could, however, be potentially liable for all losses caused by his or her failure to follow with reasonable promptness and care the explicit instructions of the client.  Moreover, the attorney’s honest belief that the instructions were not in his or her client’s best interest provides no defense to a suit for malpractice. Note, Attorney Malpractice, 63 Column. L. Rev. 1292, 1302 (1963).  Thus, the attorney must act in conformity with his authority and instructions and act with reasonable diligence in representing his client, and is responsible to his client if he or she violates this duty. See ABA Rule 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”)

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