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Refusing to Settle: A Look at the Attorney's Ethical Dilemma in Client Settlement Decisions

Publication Title

Washington University Journal of Law & Policy

Abstract

Imagine you are a solo practitioner and have taken on a new personal injury case. Your client, the plaintiff, is adamant about going to trial. You initially think she has a good chance at a hefty award, but as the case progresses you realize her potential recovery is much lower than expected. You strongly recommend settlement as her best possible option to obtain some meaningful payment, but she persistently refuses to settle. What do you do? Your options are either to withdraw from the case or to continue with representation, despite your disagreement with the client. In some instances, however, the court will take away your option to withdraw and mandate your continuing representation. Both avenues can potentially create serious ethical questions. The American Bar Association (ABA) and state model ethics rules provide that it is the client who ultimately decides whether or not to settle. Why, then, are attorneys allowed to withdraw in some cases because their client refuses to settle? What effect does withdrawal have on a client's unfettered right to determine the objectives of the representation? On the other hand, continuing representation raises legitimate concerns of whether the attorney can effectively represent a client with whom he or she has a fundamental disagreement. What can the attorney do in this case? What should the attorney do?

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