The attorney client relationship, once established, is sacred. It’s often misunderstood by both lawyers and clients (and sometimes by members of the public). When it comes to the attorney client relationship, who is in charge? If you’re an attorney, it’s imperative that you truly understand the dynamics of the relationship so that you’re better able to protect yourself from an allegation that you’ve violated professional conduct rules for lawyers.
Both the Lawyer and the Client Have Decision Making Power in the Attorney Client Relationship
In a previous article, Megan Zavieh summarizes ABA Model Rule 1.2 as the “objectives of the representation” amounting to the attorney following the decisions that the client makes. How attorneys get to the goal that client has in the matter will depend on the instructions of the client. Yet, there are matters that the client possesses sole discretion. There are also matters in which the lawyer control. Here’s how that breaks down.
Attorney Client Relationship: The Client’s Power Within the Dynamic
Within the attorney client relationship, there are two very important areas in which the client has exclusive power:
Settlement offers. Even if you believe that the settlement offer received is the best possible amount (or outcome) for your client, your client has the right to say no. Lawyers may not accept a client’s offer without their permission. Of course, you may advise the client about what is (or isn’t) in their best interest. Ultimately, the client is the one who calls the shots when it comes to settlement offers.
Objective of the action at hand. Within the attorney client relationship, the client has the power to determine the objective of the action at hand. Even if that objective isn’t something that you believe is in the best interests of your client, they have the power to make this decision. The only exception is if the client aims to do something that pushes you outside of your ethical obligations as an attorney.
Attorney Client Relationship: The Attorney’s Power Within the Dynamic
Attorneys generally get the power to determine the means by which the objective(s) of the client will be met. The exception here lies in whether you’ve signed a contract that limits this power. Your authority may be limited if you’ve signed a contract that defines the terms of your engagement. In general, though, lawyers may:
Choose vendors. Lawyers may make the decision to contract with certain vendors. This may include, and is not limited to, e-discovery vendors and copying services. However, if you’re a lawyer who is entering into a highly specific contract, make sure that you read it carefully (before you sign) to know if you’re going to be limited on which vendors you can and cannot use. There may be a cap on expense or a conflict of interest.
Choose staff for the case. Generally, lawyers are in full control of their law office staffing. If you have a client who insists on certain staffing choices, you get to decide whether that person or those individuals will be used.
Refuse to participate in a crime or fraudulent activities. As an attorney, you have the right and an ethical obligation to refuse to participate in a crime or fraudulent activities. You can refuse to represent the client, withdraw from the matter, or attempt to counsel the client on the consequences of their objective.
Scheduling. While the client may request that you engage in certain activities, such as deposition discovery, you have the power to choose when to schedule those matters. Of course, it may be important for you to consult the client before you schedule matters to ensure their availability. You also have the power to handle the briefing schedule.
Details of the matter. You have the power to handle the details of the matter. For instance, while the client retains the power to make the decision on a settlement, you have the power to determine how to approach the other party. The details of the matter at hand fall within your expertise; and your expertise is the very reason the client elected to hire you.
Are You Facing Disciplinary Action?
If you’re an attorney facing a disciplinary action related to the attorney client relationship or another matter, schedule your consultation with Zavieh Law now. Disciplinary actions can damage your reputation and take away your law license. Don’t leave your defense to chance. Contact Zavieh Law now.
The post Are You Making This Attorney Client Relationship Mistake? appeared first on Ethics and California State Bar defense lawyer Megan Zavieh.
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