When you retain a lawyer to represent you in a civil matter such as a car accident, slip and fall, will contest, or business matter, he or she has a fiduciary duty to you to make decisions with only your best interests in mind. An attorney also has an ethical duty to provide you with competent legal representation, to keep you informed of all developments in your case, and to properly advise you on the law and other legal matters. The attorney does not have the authority to make final decisions. Thus, if an attorney settles a case without your knowledge or consent, this is often considered legal malpractice.
In civil cases such as personal injury, lawyers generally take such cases on a contingency basis where they are only paid if the case settles or otherwise results in a monetary verdict. Many cases lead to the defendant party’s insurer making a financial offer to settle your case before trial. Many claimants will accept a reasonable offer to settle since trials can take many months or years and its outcome is uncertain.
Once an offer is made by the other party or its insurer, your attorney must promptly advise you. If your lawyer feels that a better offer can be made and accepted, she will advise you. But your attorney must give you an honest analysis of your claim and whether based on the facts and law, the offer is reasonable, and you should not expect more if the matter proceeds to further litigation.
Trials are also costly with expert witnesses necessitating considerable costs. An attorney has to work long hours to adequately prepare for trial as well. Accordingly, many attorneys are eager to settle cases to get paid without having to spend many hours preparing for trial; often, with tv lawyers or inexperienced lawyers, the paralegals are under pressure to “move cases”. However, an attorney must be objective and give you a sober and realistic assessment of any offer. Your attorney cannot unilaterally settle your case without your consent.
Your Rights as Client
As a client, you have certain rights:
- Your attorney owes you a fiduciary duty to represent you with only your best interests in mind
- You must be treated with courtesy and respect
- There must be no conflicts of interest with your attorney and other relevant parties unless they are clearly expressed and waived by you
- All fees, expenses, and liens you will owe or that will be deducted from a settlement or verdict must be clearly outlined by your attorney
- The attorney is obligated to keep you updated and well-informed on all developments in your case and its status
- No significant decisions can be made without your knowledge and input
- All settlement offers must be promptly communicated to you
- Your attorney should advise you of the merits of the offer and if the facts and law demonstrate that it is a fair and reasonable offer or not
- Unless you specifically agree, your attorney cannot settle your case without your consent
- You have the right to end the attorney-client relationship at any time, though your attorney may file a lien for legal fees on any settlement or verdict
- Your attorney must accept your decision to not accept an offer
Should your attorney violate their ethical and contractual duty to inform you of an offer and settles your case without your consent, you may be bound by the agreement, especially if your retainer agreement had a power of attorney clause or permitted the attorney to sign a settlement agreement on your behalf. However, you do have rights and remedies if that should occur.
If You Did Not Consent to the Settlement
Again, if your lawyer accepted an offer without your knowledge or consent and signed off on it, you do have legal remedies. Follow these recommendations:
- Gather all documents and correspondence, including emails, texts, and phone records regarding all discussions regarding settlement and settlement offers. Make notes that include the dates and times you discussed the matter with your attorney and what explanation, or excuse was given to settle the matter without your express consent (Ask if your phone call can be recorded as Massachusetts law requires two-party consent to record a conversation).
- You may have rights with respect to filing a Complaint with the Massachusetts Board of Bar Overseers.
- Consult a legal malpractice attorney.
Your legal malpractice attorney can file a legal malpractice claim against your original attorney. He can also file a legal malpractice claim. In either case, your attorney must prove that you never authorized the attorney to settle your claim without your knowledge or consent AND that as a result you suffered monetary damages – they settled your claims for clearly below a reasonable settlement. The records you kept will be essential in proving your case and you reasonably could have settled the claim for a more substantial amount.
Retain the Law Office of Burns and Jain
Learning that your case was settled without your consent can be extremely unsettling. Your attorney may have violated basic rules on fiduciary responsibilities and ethical obligations towards you. If this happens to you, call (617) 227-7423 and consult an experienced legal malpractice attorney at Burns and Jain who can advise you on your claim and your legal rights.