Unsettling Questions Regarding Lawyer Civil Claim Settlement Authority
Parness, Jeffrey A.
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While often presumed or declared to be quite settled, many of the guidelines on lawyer civil claim settlement authority are unsettled, leaving unresolved questions for lawyers, clients, and the courts. The upcoming publication and general circulation by the ALI of The Law Governing Lawyers will help, as may any attention directed toward settlements by the ABA Ethics 2000 Commission, now at work considering possible alterations of the Model Rules of Professional Conduct. Recent experience suggests that state and federal court rulings are not likely to settle much of the present uncertainty. Our review of the prevailing lawyer civil settlement guidelines suggests the need for certain new initiatives. First, the guidelines should predominantly originate in state supreme courts. At the very least, their general parameters should usually appear in written rules on the professional conduct of lawyers. For now, federal courts should defer to these state rules unless there are very significant federal interests. Second, as a starting point, state courts should carefully consider the ALI pronouncements in The Law Governing Lawyers. Lawyers generally are not like other agents nor are lawyer retainer and subsequent legal service agreements generally like other contracts. Unlike most other agents, the conduct of lawyers with third persons on behalf of clients is governed not only by the directives of clients, but also by mandatory professional conduct standards. Furthermore, unlike most other contracts, lawyer-client legal service agreements are constrained by public policies found in these same standards, including obligations on information disclosure (from lawyer to client) and on confidentiality (by the lawyer). Thus, lawyers should keep clients informed of settlement talks even if the relevant legal services agreement does not expressly indicate such an obligation. Moreover, lawyers should not reveal the nature of their delegated authority to the adversaries of their clients even when these adversaries have good reason to know. In employing the ALI pronouncements, sensitivity to terminology will be necessary. Distinctions between delegated and undelegated authority, as well as between the varying forms of both delegated and undelegated authority should be set forth. These distinctions need not appear in written laws, but rather may be recognized in accompanying commentaries (which hopefully will dispel any notions that clients always make the civil claim settlement "decisions"). Third, in civil claim settlement settings involving the interests of two or more American governments, issues of lawyer civil claim settlement authority should normally be resolved with the lawyer professional conduct laws of the state where the relevant civil claim is pending. Otherwise, the choice of law standards in Model Rule 8.5(b) should resolve this issue. Fourth, when the general written rule (or code) provisions on lawyer conduct are supplemented (and, at times, overridden), the general laws should cross-reference, to the extent feasible, the special laws so there can be appropriate integration of all applicable standards.