Whether it’s in a civil or criminal proceeding, the negotiating skills of a California lawyer are vital to working out a settlement to your case. However, the one thing you should not hear is that your lawyer has agreed to a settlement on your behalf. If your attorney has accepted a settlement without your consent, you may have been a victim of legal malpractice.
According to Findlaw, a lawyer has the duty to communicate to the client any and all settlement offers. In addition, attorneys should convey anything new that has occurred that can affect the outcome of the case, including recent developments and information that the client has not received. Once a lawyer has described the terms of a possible settlement, the attorney can only accept the settlement if the client first agrees to it. Failure to do so may constitute a breach of fiduciary duty.
A piece run by the American Bar Association makes it clear that while lawyers may sometimes disagree with the terms of a possible settlement, they are still duty bound to communicate the terms to the client and accept the client’s decision even if the legal counsel recommends holding out for a larger settlement or if the counsel believes the client’s decision is based on poor information. If an attorney has properly informed a client of a possible deal regardless of personal misgivings, than the counsel has discharged his or her duty.
The ABA piece does lay out one strictly defined exception. There may be times when the client makes clear to the attorney that a deal under certain terms is unacceptable even if the opposing side offers it. In this case, the attorney is not bound to tell the client that the deal has been offered. Conversely, a client may decide that specific terms are acceptable and wants the counsel to accept it without discussion. In all these cases, the wishes of the client dictate how the attorney is to act. Even if legal counsel does accept the deal, it is only because the client has authorized it beforehand.