In lawyer-client relationship, who makes the decisions?

When an attorney and a client enter into a lawyer-client relationship, one of the more frequent areas of conflict is who makes the decisions with regard to the handling of the matter.

While the Rules of Professional Conduct provide some guidance, they leave many questions unanswered.

This article will point out what is included in the rules and make suggestions on how to deal with other issues that may arise between the lawyer and the client when there are disagreements that should be resolved, if for no other reason than these disputes often result in Board of Bar Overseers complaints. (The American Bar Association Model Rules of Professional Conduct will be cited; it will be noted if and when the Massachusetts Rules of Professional Conduct differ.)

Much of the guidance about decision-making is contained in Rule 1.2(a) which establishes the basic parameters of authority for both civil and criminal cases. Initially, it advises the attorney that he should consult with the client to establish the objectives of the engagement.

While the rule does not specify how to achieve those objectives, that discussion is important and can be an opportunity to work out how decisions will be made and what the working relationship will be between the lawyer and the client, thus avoiding future problems.

With regard to civil cases, Rule 1.2(a) states that the decision as to whether to settle a case rests with the client. If that directive is read in conjunction with Rule 1.4 (requiring a lawyer to communicate to the client any significant aspect of the case and to respond to any reasonable requests or questions the client may have), then the lawyer is obligated to bring to the client’s attention any offer for settlement, including those that the attorney may believe will be rejected or are not even worth considering.1

Some jurisdictions, such as California, make communication of all offers a requirement in the lawyer-client relationship. In fact, whether it is required or not, it is a good practice and should enhance the relationship.

Furthermore, even if a client has clearly told the lawyer that he will not consider any offer lower than a specified amount, a client’s situation can change and that offer suddenly may be one the client wants to accept.

Clients change their minds. A good example of this type of situation was a case in which I represented a lawyer who was about to resign and be disbarred. Shortly before that decision was made official, he won a $4 million jury verdict in a products liability case in federal court.

The defendants appealed and the case went for the mandatory mediation in the 1st U.S. Circuit Court of Appeals. The mediation appeared to be unsuccessful with the parties far apart, the client adamant that he would accept nothing less than $3 million, and the defendants refusing to go above $900,000.

As we left the courthouse, the client told the lawyer not to contact him unless he could get the $3 million. It appeared the case would proceed to appeal. Within a few days, however, the client called the lawyer and told him his situation had changed, and he wanted to take the offer of $900,000 and needed the funds immediately. With the lawyer now having flexibility to negotiate, he reopened discussions with the defendants and reached a settlement of $2.1 million.

In civil cases, there are difficult decisions to be made not covered by the rules. For example, who should make the strategic decisions for the engagement, such as what should the theory of the case be, who should be deposed, and who should be called as witnesses at a trial? See Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 222 (2012).

The allocation of decision-making at different stages of a case often depends on a number of factors. For example, sophisticated clients, such as corporations, that have regularly utilized lawyers, likely will have worked out with their outside counsel how strategic decision-making will be allocated.

Unsophisticated clients, on the other hand, often want the attorney to make all the decisions, including whether or not a settlement offer should be accepted, or they want to make all the decisions, including strategic decisions, themselves.

Others initially may need hand-holding, including constant contact on even the most minor issues, until an allocation of responsibilities is worked out. Keep in mind that a large number of complaints filed by clients at the Office of the Bar Counsel emanate from clients who feel their lawyer is neither consulting nor communicating with them.

While there is no specific direction regarding strategic decision-making for civil cases in the rules, there are practice models that many lawyers follow.

One model is that the lawyer and the client will consult and reach an accord on decision-making. The model presumes that the sophistication and bargaining power of the lawyer and the client are relatively equal and that the client can intelligently monitor the services the attorney is providing. The model is used most often with corporate and wealthy clients.

A key to the success of the model is the willingness of the lawyer to communicate regularly with the client on all key decisions.

A second model is that the lawyer is a fiduciary for the client and that the client is dependent on the attorney’s expertise, knowledge and capability to provide loyal, competent and diligent services to the client.

The fiduciary model differs from the more participatory model in that it relies more on trust than communication. In both instances, the key factor is what authority the client is ceding to the lawyer.

As noted earlier in this article, the rules clearly state that the client decides whether or not to settle a civil case. However, the courts have recognized that clients may allocate that decision-making authority to their lawyers.

The authority may either be actual or apparent. Actual authority may be express or implied. Apparent authority exists when a client, through either words or deeds, causes a third party to reasonably believe that the lawyer has the authority to act on behalf of the client.

When a lawyer settles a case, and the client subsequently reneges, it may be left to the courts to resolve whether the attorney was acting on actual or apparent authority, or without authority. See, e.g., International Telemeter Corp. v. Teleprompter Corp., 592 F.2d 49 (2d. Cir. 1979). Some jurisdictions do not recognize apparent authority and insist upon actual authority.

Rule 1.2(a) also defines what decisions a defendant must make in a criminal case. Obviously, only the client can decide whether to plead guilty. In a recent case, the U.S. Supreme Court held that any plea offer must be communicated to the defendant and that the failure to do so is “ineffective assistance of counsel. Missouri v. Frye, 566 U.S. ___ (2012).

Rule 1.2(a) also directs that only the defendant can waive a jury trial or decide whether to testify. In addition, the U.S. Supreme Court has held that only the client may decide whether to appeal.

Courts often require defendants to understand that they are waiving those rights by conducting a colloquy with the defendant in open court to determine if the rights have been explained and are understood, or asking the lawyer and the client whether the rights have been explained to the client by the lawyer, and putting the responses on the record.

What about all the other decisions, such as what witnesses to call, what questions to ask, and what issues are included in the appellate brief? The caselaw on the criminal side is much clearer than on the civil side.

Insofar as criminal trial practice is concerned, the Massachusetts Supreme Judicial Court, in ineffective assistance claims, has consistently held that lawyers have the right to make these and other strategic decisions with successful ineffective assistance claims allowed only when the lawyer’s strategic decisions are “manifestly unreasonable.” See e.g., Commonwealth v. Bell, 455 Mass. 408 (2009), in which the court held that “a strategic decision by counsel will be deemed constitutionally ineffective only if it was manifestly unreasonable at the time it was made.” at 421, quoting from Commonwealth v. Adams, 374 Mass. 722, 728-730 (1978).

In Jones v. Barnes, an appeal also decided by the U.S. Supreme Court, the court held that while the decision to appeal is up to the client, what will be included in the brief is up to the lawyer.

The court opined that lawyers are trained to make those decisions, reasoning that to allow a defendant to make that decision would undermine the ability of counsel to present the appropriate arguments in accordance with counsel’s professional evaluation.

Many lawyers insist on deciding what negotiating or trial strategy will be followed, and there is a body of caselaw allocating to lawyers the right to make strategic decisions even at the sentencing phase of the case. See Nix v. Whiteside, 475 U.S. 157 (1986).

One way to deal with the formulation of case planning, even for those lawyers who insist on making all the strategic decisions, is to consult with and explain your reasoning to the client, and allow the client at least to be informed in advance of putting the decisions into action.

In the comments explaining Rule 1.2(a), it is noted that a lawyer and a client may disagree on the means to accomplish the client’s objectives. It can be inferred from the explanation in Comment [2] that the client is expected to defer to the attorney where his special knowledge and skill — particularly with technical, legal and tactical matters — are involved. It can be further inferred that the lawyer should defer to the client when it involves such subjects as budget and expenses, as well as when the client’s concern for a third party that might be affected when deciding what witnesses to call.

Other than that, the rules offer no further guidance.

In fact, what may be the most important directive in the rules governing allocation of decision-making is the requirement that the lawyer shall consult with the client “as to the means by which they (the objectives of the client) are to be pursued.”

Comment [1] to Rule 1.2(a) explains further: “(A)s the Rule implies, there are circumstances, in litigation or otherwise, when lawyers are required to act on their own with regard to legal tactics or technical matters and they may and should do so, albeit within the framework of the objectives of the representation.”

That is good advice so long as the lawyer also takes the time to communicate what decisions he is making, or will make, to the client.

Endnote

1 In In re Lupo, 447 Mass. 345, 353 (2006), a bar discipline case, the lawyer was disciplined for, among other reasons, his failure to convey an offer to his clients promptly upon receipt, and “his refusal to disclose two outstanding offers to his (clients) … ,” thereby violating Mass. R. Prof. C. 1.2(a), 1.4(a) &(b), and 8.4(h).