From start to finish, a personal injury claim is a process. When physical injury and financial hardships result from another’s negligence, carelessness, or misconduct, the injured become legally eligible to seek financial compensation. When the injured person contacts a personal injury attorney about the possibility of initiating a claim, a bond begins to form. If hired, they can represent that person as a client.
The American Bar Association says a lawyer is an advisor, an advocate, a negotiator, and an evaluator. Accident victims have a right to seek compensation for their physical and financial losses. Those harmed by another person’s negligence frequently partner with a personal injury attorney in their quest for justice.
Unfortunately, sometimes hiring an attorney does not always meet a client’s expectations. Discovering their lawyer accepted a settlement without consulting them could be grounds for yet another legal battle. Read on to learn more about personal injury guidelines, laws, and ethics from our experienced personal injury lawyers at Jacoby & Meyers, LLP.
Attorney-Client Relationship
“There are few of the business relations of life involving a higher trust and confidence than that of attorney and client.”(U.S. Supreme Court 1850)
And so it has been for 172 years—a legal system born from tradition and based on history and protocol. A client-attorney relationship is based on mutual trust. First impressions are critical, and open, honest communication is vital. How to choose the best lawyer for a particular legal need is not a narrowly circumscribed area of discussion and is best left for another blog. For now, let’s say the cost of a wrong choice is expensive.
Once a client establishes an attorney-client relationship, the lawyer acts as the client’s agent. The client is the only person who decides whether or not to settle a case.
An Attorney Is an Advisor
Andrew G. Finkelstein, Personal Injury Accident Attorney
As an advisor, a lawyer owes the client advice based on their education, skill, and experience regarding the particular personal injury situation.
Will the attorney and the client always agree? No, not always. Will the client always be happy with what the lawyer has to say? Maybe not.
As an advisor, the lawyer’s job is to counsel them regarding the best and worst-case scenarios. When accepting a settlement, a lawyer may feel it is likely the best outcome. The client has the final say. Lawyers have a professional code of conduct—those who accept a settlement offer before speaking with their client have breached their ethical duty.
An Attorney Is an Advocate and a Negotiator
A lawyer-client relationship exists when the attorney helps a personal injury victim identify and understand their legal rights and pursue justice via a compensation claim. The interpersonal dynamics of this relationship depend on both parties acting in good faith without dishonesty, deceit, or misrepresentation. In a settlement negotiation, the lawyer presents the facts, explains the needs and requests, and the client controls the agenda.
A lawyer acts on behalf of their client. In a lawyer-client relationship, the lawyer may not alter the client’s will and may not violate their fiduciary duty to act in the client’s best interest.
A Lawyer Has a Fiduciary Duty to Every Client
Attorneys are bound to a code of professional ethics. They have to work in the best interests of their clients. Transparency and open, honest communication are cornerstones of the legal profession. When the lines of communication break down, misunderstandings can become significant legal problems.
Did You Give Your Lawyer Permission to Accept a Settlement?
If the relationship is based on trust, listen to the attorney’srecommendation on whether to settle. Years of professional training and experience prepare them to evaluate the merits of each case. Good lawyers are adept at the power of persuasion. It is considered a part of the fiduciary duty to help a client make informed choices.
Statistics show only a small percentage of personal injury cases (5 percent) end up before a judge and jury. However, the final decision is the client’s to make.
So what reasons could a lawyer have for recommending a settlement?
- A trial is expensive, time-consuming, and unpredictable
- A fair settlement is a guarantee of compensation and moves faster
Review the Retainer Agreement
It may be possible that the retainer agreement between a client and the attorney contains a power of attorney clause. This powerful document is sometimes overlooked. If a client signs the agreement and release, the lawyer, in theory, may accept a settlement before consulting the client. Does it mean they always will? No.
A retainer agreement may contain the authorization to:
- Execute documents to settle a case
- Submit to binding arbitration
- Sign a “release from liability” documents
Retainer agreements are protective for both the client and the lawyer. This is a broad subject and is best left for another blog.
In a nutshell, this document should:
- State the law firm has no conflict of interest in representing the client
- Specify and clarify the scope of the lawyer-client relationship
- Outline what they can and cannot do on behalf of the client
- Address the fees involved
- State that the lawyer must consult the client on all significant decisions
- Describe how the firm and the client will communicate
- Define who will be working on behalf of the client
- Specify the client’s right to terminate the attorney, and detail the attorney’s obligations after termination
Clients have a tremendous amount of leverage when selecting a personal injury lawyer. It is highly recommended to make sure you understand the document before signing it. The wording of any legal document can confuse a layperson. If you worry about a lawyer settling a claim without explicit consent, ask to include something that addresses this concern in the agreement.
If a client no longer has confidence in the honesty and integrity of the attorney or believes the advisor is now an adversary, it is best to terminate the agreement.
Lawyers Do Make Mistakes
Lawyers can and do make mistakes. There is a difference between a “mistake” and malpractice. Those errors that seriously impact a client’s case may be considered legal malpractice.
Some common errors include:
- Missing a statute of limitations – A lawyer must know the statute of limitations for the state they practice in. Once this deadline is passed, a client may have no legal recourse for receiving compensation.
- Incompetence – A client trusts a lawyer to have, at the very least, a basic knowledge of the law pertaining to their particular situation.
- A breach of fiduciary duty – A lawyer who acts out of self-interest rather than in the client’s best interest.
Other examples might include substance abuse, fraud, and ethical violations.
A Client’s Rights And Responsibilities
Clients have rights as well as responsibilities. Among other things, a client has a right:
- To be treated with courtesy and consideration
- To have legal matters handled competently and diligently
- To terminate the attorney-client relationship at any time
- Expect your lawyer’s independent professional judgment to be uncompromised by conflicts of interest
- An explanation of the attorney’s fees
- To have questions and concerns answered promptly
- To be kept reasonably informed as to the status of the case
A client has a right to receive sufficient information from the attorney to make informed decisions regarding the development of the case and the scope of representation.
The client retains the power to reject or accept a settlement. With power comes responsibilities.
A lawyer has the right to expect a client will:
- Treat the firm’s staff with courtesy and consideration.
- Maintain an open and honest relationship with all members of the law firm.
- Honor the lawyer’s fee schedule agreement.
- Pay all agreed-upon fees and expenses.
- Keep the attorney apprised of any changes in the personal contact information.
How Should a Lawyer Communicate a Settlement Offer
An experienced personal injury attorney can let a client know the claim’s potential value once the investigation ends. Initially, the insurance company will, most likely, offer a lowball settlement amount.
(Sometimes, the insurance company will contact the injured party directly to avoid the possibility of an expensive payout or lengthy trial. Of course, a client has the right to accept an offer independently, but it is best to let an attorney handle these matters.)
A lawyer should present this first offer to the client and tell them that negotiations are a process. It is entirely possible for there to be many offers and counter offers before a claim is either settled or moves on to litigation. The client is entitled to participate in the decision-making process at every step.
At some point in this back-and-forth process, the lawyer may feel, based on their experience, that the insurance carrier’s offer is fair. The final say is always up to the client. This statement bears repeating—the final decision to accept a settlement offer or proceed to a trial is always up to the client.
Communication Beyond the Settlement Offer
Although anything can happen, most settlement outcomes are positive. Most lawyers handle personal injury cases on a contingency basis, so the attorney will deduct their legal fees from the settlement amount once you accept a settlement. A client should learn about any tax liability attached to the financial settlement and any insurance-paid medical expenses that need to be reimbursed.
If Faced With an Ethical Violation
“The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law.”— The New York lawyers’ Code Of Professional Responsibility
Passing the bar exam gives one a license to practice law. In a perfect world, every lawyer is an example of competence, ethical conduct, and professionalism. Competence combines knowledge, skill, and physical and emotional stability. It can happen, even in the noble law profession—ethical violations and a lack of competency can be problematic and costly. What can one do if an attorney does not meet competency standards? Clients do have recourse if an attorney does not correctly communicate a settlement.
Report It to the State Bar
Any fiduciary breach is a serious legal matter. Clients can take legal action against an attorney for competence or ethical violations. Contact the State Bar, report them, and file a complaint with the state’s disciplinary board. With a lawyer’s help, file the official complaint in writing, as precisely as possible, with the details and reasons for the complaint.
What happens next is out of the client’s hands. First-time offenders may receive reprimands, while repeat offenders may lose their license to practice.
Licensing authorities do take client complaints seriously. They usually establish a panel to investigate the allegations and sometimes hold an evidentiary hearing where the attorney can explain their side of the story.
This process only serves to discipline the attorney. It does nothing to help a client move on with their case.
At this point, it is time to seek services from another personal injury lawyer. Check the state bar websites for information about lawyers with previous disciplinary actions. Due diligence may prevent a repeat of poor representation.
So, to answer the original question, “Can a lawyer settle my case without my consent?” Yes, in some instances, maybe they can, but should they? No. Depending on the circumstances, you may wish to consider a malpractice suit. Reach out to an attorney today to find out if you have a viable case.