What the Client Decides in a Case
The ultimate control over decisions that will impact on the merits or substance of a case lies with the client. The client, and only the client, determines the “objectives of representation.” (See Model Rule 1.2(a)).
Here’s a short list of what the client decides in a matter:
- whether to accept a settlement offer in a civil case
- what plea to enter in a criminal case
- whether to waive a jury trial in a criminal case
- whether the client will testify
- whether to follow through with an appeal
EXAMPLE: A plaintiff’s lawyer in a personal injury case is negotiating a pricey settlement with the representatives of an insurance company. The client signs a paper giving the lawyer the authority to settle for a particular sum. After hours of wrangling over figures and the terms of payment, the insurance company gives the lawyer a figure that is in the client’s “ballpark” but slightly below the client’s minimum.
The lawyer does everything he can to communicate the terms of the offer to the client, but the client is away for the week in the Hamptons and is unreachable. The opposing attorneys state, somewhat disingenuously, that this offer will only stand for ten hours. The lawyers go home. At the end of the ten hours, the lawyer calls up the opposition and says, “You know what? I’m sure my client would want this to be over. We’ll take it.” Here the lawyer has overstepped his authority in approving the settlement. He has violated the ethical rules and will be held responsible if the client is dissatisfied.
Again, if the attorney makes a decision that affects the client’s substantive rights in the case, the attorney may be in violation of the ethical rules and is exposing himself to malpractice liability.
The Model Rules hold that if prior discussions with the client have made it clear that an adversary’s settlement proposal would be unacceptable, then the lawyer does not have to advise the client before refusing an offer. (See Model Rule 1.4, Comment ). In the absence of directions from a client regarding what is an acceptable offer, a lawyer must consult with the client before agreeing to a settlement.
The lawyer should heed the wishes of the client regarding the costs of litigation. Sometimes motion practice can only be done at great expense, and a lawyer has to consider the realities of the client’s finances. The lawyer “should defer to the client regarding such questions as the expense to be incurred,” according to Comment  to Model Rule 1.2. This rule essentially trumps the lawyer’s prerogative when it comes to making strategic decisions.
The client also may have concerns about the effect of litigation on third parties. Especially in cases related to family law, where children and other family members could be adversely affected by the litigation, a lawyer must listen closely to the client’s wishes regarding whether or not to “go easy” on certain issues.