The attorney-client relationship is founded on trust and communication. All attorneys have an ethical responsibility to clients to act in their best interests and zealously defend and advocate for them. Attorneys also have a duty of care to clients and to handle and manage their cases with the reasonable skills and knowledge commonly exercised by other attorneys practicing in that area of law.
One of the most important features of their duty of care is keeping their clients well-informed about their cases and obtaining informed consent when necessary. However, consent from the client is not always required since the attorney can make unilateral decisions about investigating the facts of a case, researching the law, identifying and getting statements from witnesses, conducting and responding to discovery, and filing motions.
Keeping the Client Informed
To avoid disputes and misunderstandings, your attorney should explain the legal process to you, the causes of action of your claim, what defenses he plans to raise if you are a defendant, the claim’s strengths and weaknesses, its challenges, the reasonable expectation of success, and how he plans to handle it. Legal strategies and risks and benefits should be explained. You should be copied on legal correspondence and emails relevant to the case, given copies of motions filed by your attorney or against you by the opposing party or attorney, and made aware of the case’s progress and status.
You should also have reviewed the written fee retainer with your attorney, which is mandatory, and understand the fee structure, what expenses you are responsible for, and your own obligations.
However, there are certain items or aspects of a case of which the client needs to be informed and to give her informed consent. These are:
- Conflicts of interest–in situations where an attorney’s duties and obligations to a client may be limited by his relationship with another client, former client, or third party, the attorney must obtain written and informed consent of the relationship from the client. This includes representation where the attorney may have a financial interest in the outcome, such as a claim against a company in which the attorney owns stock or where the outcome could affect the attorney’s personal or financial interests.
- Disclosure of personal or private information to another party—all communications by a client with her attorney are privileged and cannot be disclosed without the client’s informed consent unless ordered to reveal it by a court or where the disclosure can prevent a criminal act likely to result in death or great bodily harm to another person.
- Compensation from another party–your attorney cannot accept compensation for representing you in your case from another party without your consent.
- Engaging in mediation or arbitration–mediation or arbitration in your case may be mandatory in some cases. If not, your consent is required before your attorney can engage you in it. You should be advised of the process and the restrictions on confidentiality.
- Acceptance of a settlement—your attorney cannot accept a settlement offer without your consent.
- Trial or settlement—trials can be time-consuming, stressful, and costly. You need to be fully informed of the reasonable or possible unexpected outcome, your responsibilities, the costs involved, and the possible risks and benefits of any decision you make.
- Appeals—if you lose your case or are unsatisfied with the result, you may be able to appeal the decision. Your attorney needs to advise you of the timeline for filing, the costs and legal fees, possible outcomes, and whether pursuing it is worthwhile.
An attorney can avoid disputes and a disgruntled client by being realistic with the client, keeping her informed of all relevant matters, and promptly responding to the client’s concerns. Having trust in your attorney regardless of the outcome can soften the blow if a case does not turn out as hoped,
However, if your attorney failed to keep you informed about your case, did not disclose a conflict of interest, an offer or settlement, incurred expenses or costs of which you were unaware and were not explained to you, or misrepresented key aspects of your case, then do not hesitate to consult a legal malpractice attorney.
Consult the Law Office of Burns and Jain
An attorney who fails in his ethical and legal responsibility to a client may be guilty of legal malpractice, particularly if the misconduct or failure to act was the direct cause of the adverse outcome in your case and resulting in your suffering substantial damages. Consult an experienced legal malpractice attorney from Burns and Jain if you know or suspect your attorney mishandled your case.