February 2002

The Discipline Notice: Getting a Client's Consent

by Jeff Tolman

Some months ago, I opened the just-arrived Bar News. I initially turned to the disciplinary notices, and then the obituaries, to see if any of my friends' or former opponents' names were there. I agreed with the sanctions imposed in most of the disciplinary notices I read. Lawyers had done things they should not have, or not done things they should have. One notice really caught my eye, though.

Without getting the client's prior consent, a lawyer had received an admonishment for forwarding a letter to a mediator disclosing that he and his client disagreed on the value of a claim. The hearing officer found that there was no actual harm, but there was potential harm. And that "the fact that these types of communications are frequently made to mediators does not exonerate the conduct."

The issue recently reared its head again in an article about the issues of ethics in ADR in general, mentioning this admonition specifically. While in a scholarly way the issue may be clear (all I have to do is get my client's prior approval to reveal anything he says to me), in the trenches the issue gets more complicated.

As an officer of the court, I have the obligation to tell the truth to a fact-finder or dispute-resolver. Bar counsel notes that this is governed by RPC 3.3 if the proceeding is before a tribunal. Otherwise, the duty of candor is governed by RPC 4.1:

In the course of representing a client, a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person; or

(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless the disclosure is prohibited by rule 1.6.

How is telling the mediator the truth ("my client's expectations are unrealistic but he won't believe me") a violation of RPC 4.1?

As someone who feeds his kids based on his reputation, I want opposing counsel and the mediator to know that I understand the reasonable value of the case — even if my client wishes it was higher. As someone who has mediated many cases, I want to know who I need to bring to reality so that the case can settle — the client, the lawyer or both. And now I need my client's prior consent? Think of the letter:

Dear Client:

As you know, we have a mediation coming up. The case needs to be mediated because you believe your soft-tissue case is worth more than Bill Gates's Microsoft portfolio. I do not. We have hired a mediator to try and resolve the claim. I trust and respect her, and hope to work with her in the future. The demand we have made in our mediation packet is, to say the least, optimistic. In fact, I thought I heard the entire Safeco building erupt with laughter as if the adjuster had read our demand aloud. To be honest, if I got that settlement, the adjustor and defense attorney would be immediately fired, and I would start a new career speaking to lawyers on how to get off-the-chart settlements. You are being unrealistic and unreasonable. I would like your permission to tell the mediator my feelings; to let her know that it is you who needs some reality therapy, not me.

If you consent to this, please sign and return the enclosed copy. If not, please give me a call. Don't read more into this than there is. Anyone who has been married or has children knows that reasonable minds can disagree. I am still here as your advocate.

Yours truly,

Jeff Tolman

What about at the mediation, when the mediator pulls me aside and says: "Jeff, have you gone crazy? This is not a jillion-dollar case! What's going on?" How can I respond? Do I say I need my client's permission before I can answer, because if I don't have it I will be admonished?

Perhaps in other people's professional worlds, they and their clients have a common vision and march ahead, always hand-in-hand. In mine, my clients and I sometimes disagree. I sometimes have to tell them that the $50,000 they want for missing their annual bowling weekend is outside what I think the real value is.

The group most frightened by this discipline should be domestic-relations lawyers. They often deal with the most highly charged, emotional cases, with the most moving parts. They often negotiate, argue and finesse to bring ultimate justice to a case. Many times the client just needs someone to hear them before they can settle the case. Divorce lawyers often say, "My client is still devastated that her husband was having an affair with her best friend. She needs to vent. Just hear her out, be kind, and then tell my client what you believe is a fair split." Or they let the other attorney know that their client's request for lifetime maintenance for the 20-minute marriage was negotiable.

Is that unethical? Is pointing out a client's mental astigmatism "revealing a client's secrets or confidences" as was the letter to the mediator?

Lawyers often transmit information to mediators and fact-finders through code words. For example: "My client believes that his claim is worth $200,000" tells the judge that I know it is worth less. When I say: "This is a case we would like to settle based on potential difficulty in proving damages," a moxie judge will know that I have proof problems. Maybe our key witness hasn't been sober since 1963, or has been convicted of multiple felonies. Maybe my client's doctor told me, off the record, that my client is a malingerer.

There are always subtleties lawyers convey to fact-finders. It is an important part of our job. Do I have to reveal those to my client; get his prior permission to use them so that a mediator or judge can bring my client into the real range of settlement? Does my motive matter; my hope that a neutral person telling my client the same thing I do will get him to re-evaluate the line he has drawn in the sand?

Any time I represent a client I wear several hats. I am an advocate for the client; I am a counselor; I am an officer of the court; I am a pragmatist, trying to get a good result for my client. Sometimes I am a magician, trying to get everyone to look at my case's strong points without seeing the warts that exist.

I am more than an agent to parrot my client's positions, as if all of them make sense. The push, at least in this case of discipline, is to ignore every hat but the advocate's. This is not wise, and not real. There are some things that need be said to get a fair result, whether the client likes it or not, whether the client consents or not.