Negotiator’s Duties to Client - Model Rule 1.4

The first ethical realm to be considered is how lawyer-negotiators (and other legal professionals in their office) must treat their clients. Most relevant are Model Rules 1.4 and 2.1. Beginning our discussion here with Model Rule 1.4, we return to the hypothetical slander case of Flounder v. Wormer, introduced in the previous chapter, in subchapter "Adversarial Positioning & Distributive Bargaining."

EXAMPLE: When Flounder first consults Otter on the topic of settling the case rather than pursuing it to its end in court, Flounder lays out the range of settlement offers he would be willing to accept: any settlement amount (even $1) accompanied by a promise to apologize publicly, or, absent a public apology, an amount of not less than $6,000. Otter then approaches Meyer, attorney for the defendant, and offers to settle the case for $8,000.

Intuitively we might find no fault with Otter’s actions here. He has opened negotiations with a number which is within his client’s stated goal range and which allows him room to maneuver. Model Rule 1.4, however, has likely been violated. Comment 3 to that Rule tells us that the duty to consult a client before taking action depends on the circumstances. Here, when Otter certainly has time for such a consultation before opening negotiation, he should have discussed with Flounder how to best accomplish Flounder’s goals. After all, Flounder might have preferred to start by offering to settle for an apology and a dollar, and only if that is rejected move to straight money talk.

EXAMPLE: After several days of negotiation Otter calls Meyer to discuss the progress they have made and to hear what Meyer’s client thought of the last offer on the table. When Meyer picks up, he says “I’ve got 5 minutes for you. After that, if we haven’t struck a deal we won’t be able to further negotiate until I return from my trip next week.” Must Otter put Meyer on hold and call Flounder to consult as to strategy?

The Model Rules are generally quite practical in what they require of attorneys. Certainly, if Otter were to signal his paralegal to call Flounder on the other line and convey this most recent turn of events there would be no harm done. However, Comment 3 indicates that here, Otter may make a decision without first consulting Flounder. Flounder, nonetheless, must be notified promptly as to what Otter decides and does during this phone call. For a case in which an attorney went beyond the discretion authorized by his client, see Makins v. District of Columbia, 838 A.2d 300 (2003) (power of settlement does not extend to attorney whose client was not present to validate the agreement).

EXAMPLE: Mr. Mop is an attorney in Georgia who specializes in personal injury cases, although he also sometimes handles divorces, drunk driving cases, and other small matters for his clients. Several years ago Christine was injured in a car accident, and after the accident she hired Mop to represent her. As time went on, Christine assumed the case was progressing. After a while, however, with no word from Mop, she phones his office and requests an update. Several more calls to Mop’s office went unanswered. Over a year after the accident, Mop finally contacted Christine and reassured her that the case was still pending and that he was “taking care of everything. Don’t you worry now, y’hear?" Christine later discovered that Mop had dismissed the case without her authorization and without notifying her of the dismissal. Among other violations, Mop has violated Model Rule 1.4 and could be disbarred for his behavior. See In re Broom, 276 Ga. 114 (2003).

Consider also the following:

EXAMPLE: Francine is a paralegal working for Mr. Mop. Because the practice is small, in addition to her research duties she often answers the phone and opens the mail. In February of 1997 a new phone system is installed in the office, which Francine never properly learns to operate. Due to her lack of familiarity with the system, if a client calls on the back-up line and the voice mail picks up, that client’s message will not in fact make it into the system. Christine, a client, was given only the back-line number, and because of her work schedule only makes inquiry calls to the office on Sundays, when nobody is in. She has called several times and left messages asking for an update. In addition, she recently mailed a letter to the office requesting an update on her case. Unfortunately, that letter arrived the day Francine broke up with her fiancée, and much of the day’s incoming correspondence was misplaced in the “dead files” room. Because nothing of any import has happened on Christine’s case for the past 90 days, Mr. Mop has not seen any need to contact her.

Here, Mop’s main failure is in improperly supervising his staff (Model Rule 5.3). Although Francine’s mistakes do not result in a Rule 1.4(a)(1) violation, as no action was taken, there is a violation here of Rule 1.4(a)(4), which requires attorneys to promptly comply with reasonable requests for information.

EXAMPLE: Anceo Carter is currently incarcerated. His father, Ulysses Carter hires Attorney Boaten to help obtain a reduced sentence for Anceo. After some turns of events, and his father’s death, Anceo writes to Boaten requesting copies of a petition supposedly filed on his behalf. Approximately 6 weeks later, Anceo again writes to Boaten, and writes again a month after that. These letters continually go unanswered. In addition to other violations stemming from other facts of the case, Boaten is found to have violated Rule 1.4’s obligation for an attorney to comply with a client’s request for information. See In re Boaten, 276 Kan. 656 (2003).