Attorneys are held to certain standards of conduct, including advocating, and representing clients competently and exercising reasonable diligence, skills and knowledge expected of attorneys in the legal community. And, like all professionals, conducting themselves according to ethical standards.
Attorneys often act as fiduciaries and must conduct themselves to benefit their clients first. Avoiding situations where the attorney’s best interests supersede the client’s is an ethical breach. One such breach is failing to inform the client of a settlement offer because the attorney 1. wanted to settle the case early to collect his or her fees, or 2. to use their time to litigate or pursue other more significant cases, or 3. thinking a better settlement offer will be coming. However, failing to advise a client of an offer of settlement for any reason is a serious ethical breach; it’s the client’s case and he or she makes the final decisions.
Communication is Key in Attorney-Client Relationships
Disputes with clients are not uncommon. Attorneys must be diligent in communicating with clients, explaining the legal process to them, apprising them of updates, responding to all inquiries, and relaying the results of negotiations and settlement offers. With proper communication, most disputes between a lawyer and client with possible legal consequences can be avoided. In fact, attorneys have a duty to communicate with their clients consistently and promptly.
Few things frustrate clients more than not being informed of the status of their case. However, attorneys who are overwhelmed at work or at home, have few or no staff to assist them, wish to spend their time on other cases, or may have alcohol or substance abuse issues may ignore clients’ questions and demands to their peril.
Failing to communicate with a client could lead to a legal malpractice claim if the failure led to a situation in which, if the client had been informed of the offer or update, an unsatisfactory result would not have occurred, and the client would not have sustained significant losses or harm.
Duty to Inform of a Settlement Offer
Clients provide valuable input in their cases. An attorney may fail to relay a settlement offer because they feel the offer is too low or insignificant. Regardless of the amount of an offer or its content, failure to inform the client of the offer is a serious breach of the attorney’s ethical and fiduciary responsibilities to the client. Further, the attorney may not unilaterally reject an offer without first discussing it with the client. Many times a client will present good arguments for settling or not settling based on information new to the attorney – an expected move out of town, an expected inheritance, family issues, etc.
Sometimes, clients may not accept an attorney’s recommendations on settlement but pressuring the client to accept an offer also violates the attorney’s duty. If the attorney feels the client is being unreasonable and that further litigation is senseless, the attorney should consider terminating the relationship and allowing the client to find other representation.
Consequences of Failing to Inform
Even if an offer appears insufficient or inappropriate to the attorney, it is solely up to the client to accept or reject it. Consequences of the failure to inform may be:
- Any offer can be the basis or starting point for negotiations. Clients may feel that the stress and cost of further litigation are too great to pursue further.
- It may prolong litigation. Not being informed of an offer can lead to increased costs, and delays in resolving the matter.
- Incur additional damages. Not being advised of an offer that may have been acceptable or that could have led to a better offer can result in continuing loss of wages, court costs, and additional expert fees that can be substantial. If the case is being billed, legal fees will continue to mount.
- Emotional toll. Litigation often causes anxiety, stress, and frustration. If a client finds that an offer was made that was not relayed to her, it can increase frustration and lead to a lack of trust in the attorney.
Although the failure to advise you of a settlement offer is a serious breach of trust and ethics, it may not necessarily lead to a legal malpractice case. The failure to inform you must have caused you significant damages. For instance, if the attorney did fail to inform you of an offer but the case settles for the same or slightly more compensation, or does not result in any significant difference, then you likely will not have a viable legal malpractice claim.
However, the attorney settled your case without your knowledge or consent and gave you an excuse for why it was settled. If the settlement was unreasonable and a competent attorney could have tried or settled the matter for substantially more or for a much more satisfactory result, then you may have an actionable malpractice claim.
Retain a Legal Malpractice Attorney from Burns and Jain
If you find that your attorney failed to advise you of a settlement offer, consider consulting a legal malpractice attorney who can assess a possible claim on your part. Our attorneys have years of experience and success in numerous legal malpractice cases. Call Burns and Jain for a free consultation. Thanks.