Balancing EthicsAuthor: Portner & Shure
A client's right to refuse any settlement offer is absolute. As long as an attorney represents a client, the attorney must abide by the client's decision to accept or decline an offer.
Clients are sometimes driven by the amount of money they want in their pocket at the end of their case without understanding the true value of their case. A settlement or verdict is the sum of all of its parts. The parts are the attorney's fees, case expenses, liens, medical expenses outstanding and ultimately the client's in pocket recovery. The total settlement or verdict is the total value of the case. The value is determined by the damages, the medical expenses, and pain, and suffering.
Some clients feel that they are pressured into settlements. Listen to what your attorney is saying. There are many reasons that a lawyer recommends a settlement, which may not be pleasing to the client. The factors that determine an attorney's recommendation to accept a settlement are the increased cost of litigation, the defenses to the case, such as contributory negligence, that may damage your case and potentially cause you to lose, increased expenses, and even the client's ability to be a credible witness and withstand the pressure of a trial, and trying to meet a client's wants is considered. Trying to meet a client's wants over the value of a case can present an ethical dilemma for the attorney. When a client refuses a reasonable offer, a lawyer is faced with litigating a case to possibly attain a verdict that is equal to or less than the refused settlement offer. When this happens, the attorney is facing the ethical risk of being ineffective. Most contingency based firms charge a higher percentage to litigate a case than they would charge to settle the case prior to litigation. If an attorney tries a case and receives a verdict equal to or less than the refused offer, the client will receive less in pocket recovery because of the increased expense. This could deem the attorney ineffective.
Attorneys have to balance the desires of the client with the need to be effective and to keep the costs low. Attorneys recommend only settlements that they feel are fair and reasonable. As a client, it is important to listen to the recommendation, listen to the reasons for the recommendation and you are encouraged to ask questions regarding the value of the case and the offer made.