This post was written by Megan Zavieh and originally published on Lawyerist.com on February 27, 2015.
The attorney-client relationship is one of varying degrees of collaboration, depending on how involved your client chooses to be, how sophisticated they are in legal matters, and the type of case.
But no matter how sophisticated your client may be, certain decisions lie with the client and some are within the discretion of the lawyer. Here is a rundown of where the authority lies.
Model Rule 1.2
Allocation of authority between you and the client begins with a quick look at ABA Model Rule 1.2. A rather wordy rule, it says that as to the “objectives of the representation” the attorney shall abide by the client’s decisions. As to the means by which those objectives are pursued, you should consult with the client. Model Rule 1.2 goes further than its vague language of objectives versus means and explicitly states, “A lawyer shall abide by a client’s decision whether to settle a matter.”
When the Ball Is in the Client’s Court
There are two main decisions your client has sole discretion to make:
- Settlement. No matter how strongly you feel that a settlement offer is the best offer your client will get, and that it trumps any possible recovery at trial, it is your client’s right to refuse. You may not accept an offer without the client’s consent. When the client wants to make a settlement offer, that offer is also within the client’s discretion. You may counsel a client on both accepting and making offers, but it is not your decision to make.
- Objective. The client gets to set the goals of the matter. For instance, if a client comes to you and explains that their objective is to bequeath all of their property equally to their children, including a child who has embezzled from your client, you do not have any authority to change the objective of the representation. It is the client’s choice. Similarly, if the client informs you their goal in litigation is to refuse any settlement and litigate to death then you must abide by that stated objective (within the bounds of other ethical rules such as candor to the court, not making frivolous motions, and not hindering discovery).
Up to the Lawyer
Other decisions are generally considered means to achieving objectives and within your discretion. However, any authority can be altered by a contract. With large institutional clients who come to retain counsel with a list of standard terms and conditions, your authority may well be curbed. Other clients may negotiate terms of engagement as well.
- Vendor choice. You get to decide how to run your practice, including software and vendors. If a case requires e-discovery software or an outside vendor copying service, you can choose the service. Some clients will insist on agreement otherwise, so before moving ahead with the resource of your choice, be sure to check your attorney-client agreements. Large corporations, for example, may provide you with a list of approved vendors at the outset of the relationship; this can be important to clients who have vetted their approved vendors for conflicts. Other clients may have set a cost cap you will have to negotiate with their chosen vendor.
- Staffing. Staffing is generally left to your discretion. In firms where a partner brings in the work and then chooses associates to work on the case, the partner may choose the associates they think are best suited to the job. If a client insists on a particular associate being involved in a case, you have to decide whether to satisfy the client’s demand. It is not an ethical issue at that point.
- Crime or fraud. You have absolute authority and an obligation to refuse to participate in a criminal or fraudulent activity. If a client has stated an objective (their right to do so under Model Rule 1.2) which is itself criminal or fraudulent, you are obligated under Model Rule 1.2(d) to refuse to participate in achieving that objective. You have the right to decide whether you want to counsel the client on the consequences, or you can simply refuse to take on the representation or withdraw from it.
- Scheduling. A client may direct you to engage in deposition discovery, but when it comes time to set those deposition dates, you have the authority to set them. You can consult with the client and attempt to arrange for the client to attend if the client intends to, but ultimately you must be there. The same applies to motion practice. You can set the date and move ahead with the briefing schedule without the client being involved in the details.
- Details. There are a great many details that you deal with every day that simply cannot be decide by the client. Exactly how to approach opposing counsel with a settlement offer, for instance, is within your discretion. Setting that settlement offer is the client’s choice, but your tone in a letter or choice to take opposing counsel out to coffee to discuss is yours. Similarly, send your client copies of outgoing discovery requests before they are served, but it is your decision exactly how they are worded and what is sought. Simply put, when it is a detail that falls within the realm of expertise for which a client hires a lawyer, you can decide.
The Highly Involved Client
The authority to make certain choices becomes somewhat muddied with a highly involved client, especially a lawyer-client. This is not because the ethical rules vary, but because the relationship is a bit more complicated. Lawyer-clients come up frequently with institutional clients where in-house counsel is the client contact and in legal ethics cases where lawyers are respondents or defendants; they can also be the client in any other matter where an individual is the client, as lawyers have lives, too.
Lawyer-clients and other highly involved clients often want to make decisions attorneys are used to making on their own. For instance, a lawyer-client who is a civil trial attorney may have a lot to say about which court to file in, which discovery mechanisms to utilize, or what strategy to take when attempting to negotiate settlement in their own personal injury case.
These situations become more a client-relationship dilemma than an ethical one, since the impacted decisions are ones you get to make. In order to work well with a highly involved client, you have to set the boundaries and work cooperatively with the client. Although you have the authority under the ethical rules to make choices on the case, if the client wants more involvement, the relationship could sour.
Clearly laying out each party’s rights and obligations can help ensure your client relationships run smoothly.