Decisions Reserved to the Client

Decisions Reserved to the Client

Rule 1.2(a) lets the lawyer choose the means of a representation after consulting the client, but it holds four decisions back for the client. A lawyer “shall abide by a client's decision whether to settle a matter,” and in a criminal case shall abide by the client's decision, after consultation with the lawyer, “as to a plea to be entered, whether to waive jury trial and whether the client will testify.”¹ A memory aid is STEW: settle, testify, enter a plea, waive a jury.

The four share a singular importance to the client. The rule must protect the client's autonomy on matters of that kind while sparing the lawyer from second-guessing when exercising professional expertise, and it must draw the line between the two in a reasonably objective way, because crossing it can bring discipline.² Naming the decisions gives that line a fixed edge.

The reasons differ from decision to decision. A settlement ends the claim, which is why the Restatement (Third) of the Law Governing Lawyers reserves it to the client “because a settlement definitively disposes of client rights.”³ The three criminal decisions are the intensively personal choices of the accused, who alone makes them once the lawyer has fully informed the accused.⁴ The named decisions illustrate client authority without exhausting it, because the objectives a client pursues depend on the circumstances and the purpose of the retention.⁵

Decisions outside the named list return to the ordinary division, in which the lawyer takes professional responsibility for the conduct of the case after consulting the client. Jones v. Barnes shows the division at work. The respondent there argued that counsel should accede to a client's insistence on pressing a particular contention on appeal, and the Court began from the premise that, apart from the specified fundamental decisions, an attorney's duty is to take professional responsibility for the conduct of the case after consulting the client.⁶

Whether to Settle

The rule's settlement sentence is short: “A lawyer shall abide by a client's decision whether to settle a matter.”⁷ Unlike the three criminal decisions, it is not confined to one type of case. The reason lies in what settlement does. It trades the claim for whatever the other side has offered, and once the deal closes the client's rights in the dispute are gone. In civil litigation, therefore, the client decides whether to settle and on what basis, after the lawyer has fully informed the client.⁸

Reserving the decision does not bar the lawyer from the bargaining table. Makins v. District of Columbia drew on the Restatement (Third) to separate conducting negotiations from concluding them: absent a contrary agreement or instruction, a lawyer normally has authority “to initiate or engage in settlement discussions, although not to conclude them.”⁹ The Fourth Circuit in Auvil v. Grafton Homes drew the same line. The facts there showed that the client had manifested authority to negotiate a settlement, but not authority to execute a settlement agreement.¹⁰ Exploring terms leaves the client's rights intact; concluding a settlement disposes of them.

Retaining a lawyer to litigate therefore carries no authority to settle. Authority is the agent's power to affect the principal's legal relations by acts done in accordance with the principal's manifestations of consent.¹¹ The relationship between client and lawyer is one of principal and agent, and unless the principal has given the agent authority to make settlement decisions, the agent cannot make them.¹² The lawyer's honest belief that a deal is good adds nothing to the client's manifestation.

The client can supply the missing authority. The Restatement reserves the decision to the client “except when the client has validly authorized the lawyer to make the particular decision.”¹³ A client who does not intend a settlement may also imply that intention to the lawyer, and the client is then bound by the resulting settlement.¹⁴

A second question, whether the client is bound as against the other side, has a different answer from the first. The Rules govern the relationship between lawyer and client as between the two, and they do not set out the full parameters of the lawyer's ability to bind the client in dealings with third parties.¹⁵ A client's own dealings with third parties can create apparent authority or inherent agency power, and the client is then bound even though the lawyer lacked actual authority and breached professional obligations by making the commitment.¹⁶ Courts begin from the baseline that retaining an attorney, without more, creates no apparent authority to bind the client to a settlement.¹⁷ An answer on professional responsibility should resolve the lawyer's authority first and the effect on the other side second.

Settlement also tests the lawyer's loyalty, because the lawyer's own interests can pull against the client's. Evans v. Jeff D. shows how the rule resolves that pull. The defendants there offered civil rights plaintiffs nearly all the relief they sought, on the condition that the plaintiffs waive their statutory right to have the defendants pay attorney's fees. The Court stated the lawyer's duty plainly: the plaintiffs' lawyer “had no ethical obligation to seek a statutory fee award,” his duty was “to serve his clients loyally and competently,” and because the proposal beat the probable outcome of trial, his recommendation to accept “was consistent with the highest standards of our profession.”¹⁸ A footnote supplies the ethical premise. A lawyer must exercise independent professional judgment and must not let his own interests, financial or otherwise, influence his advice, so he evaluates an offer on the client's interest without considering his interest in a fee, and once he recommends settlement he abides by the client's decision whether to accept.¹⁹ Whether the clients accept or refuse, the choice stays with them, even when acceptance costs the lawyer a fee.

What does a lawyer do who thinks an offer is good and finds the client unwilling to take it? The lawyer advises, and the client decides.

The client can decide only what the client knows, so a duty to inform completes the allocation. The Model Rules require a lawyer to disclose all settlement offers received from the other side and to provide whatever information is “reasonably necessary to permit the client to make informed decisions.”²⁰ A lawyer who sat on an offer the lawyer expected the client to reject would decide by silence, and the client would learn that a choice existed only after it was gone. One appellate court pairs the duties: the lawyer abides by the client's decision whether to settle, and promptly consults the client and secures the client's consent before acting on any matter that requires the client's informed consent.²¹

The second step usually does the real work, because fact patterns describe the lawyer who settles without permission as hired and well-meaning, and neither fact supplies authority.

Criminal Plea Decision

In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered.²³ The plea is the defendant's answer to the charge, guilty or not guilty, and the rule leaves that answer with the defendant. It protects the client in both directions: the lawyer may not enter a guilty plea the client has refused, and may not force a trial on a client who has chosen to plead guilty.

The rule treats the choice as intensively personal. After the lawyer has fully informed the client, the defendant alone decides whether to plead guilty.²⁴ The lawyer's view of the odds is valuable advice, but it remains a prediction, and the rule does not let a prediction outvote the person the result falls on.

The phrase “after consultation with the lawyer” invites a misreading, because the rule uses a similar idea for means. For means, the lawyer consults the client and then acts.²⁵ For a plea, consultation also comes first, but the client then decides. Consultation gives the client the lawyer's assessment of the evidence, the likely sentence, and the available choices, so the decision is an informed one; it does not turn that advice into a vote. A fact pattern in which the lawyer “talked it over” with the client and then entered the plea the lawyer preferred describes consultation and a violation in a single breath.

The same rule runs in the other direction.

Waiving a Jury Trial

In a criminal case, the lawyer shall also abide by the client's decision, after consultation with the lawyer, whether to waive jury trial.²⁷ To waive a jury is to give up having a jury decide guilt, so that the judge alone tries the case in a bench trial. The decision follows the pattern of the plea: the lawyer informs and advises, and the client chooses.

The reservation reflects what the choice settles. Picking the fact-finder decides who will weigh the evidence, and with it much of how the case will be tried. The rule treats the choice as one of the intensively personal decisions that an informed criminal defendant alone makes, alongside whether to plead guilty and whether to testify.²⁸ A lawyer who has tried cases before the local judges may hold a well-founded view about which forum suits the facts, and the lawyer should share it. The view remains a recommendation, and the rule gives the lawyer no power to turn it into a decision.

The protection runs both ways. A lawyer who thinks a bench trial wiser may not hold out for one, and a lawyer who thinks a jury wiser may not insist on one. A fact pattern in which counsel lays out the options and then waives the jury because counsel prefers a judge describes consultation and a violation at once.

What does the lawyer decide once the mode of trial is set? The reservation covers whether to have a jury and nothing around it. After the client settles that question, the lawyer returns to the ordinary allocation, consulting the client about the means of the representation and then holding primary authority over them.²⁹

Both scenes involve a criminal trial and a lawyer who consults the client, and the authority comes out in opposite directions. The first concerned who will decide guilt, which the rule reserves to the client by name. The second concerned how the lawyer works inside the forum the client chose, which the rule leaves to the lawyer.

Whether to Testify

The third criminal decision the rule reserves is whether the client will testify: the lawyer shall abide by the client's decision, after consultation with the lawyer, on that question.³¹ A defendant who testifies gives the fact-finder a personal account under oath and then answers the prosecutor's cross-examination. A defendant who stays silent forgoes that account. Either way the defendant's own voice is at stake, and the rule leaves the choice to the defendant, who alone makes it after being fully informed by the lawyer.³²

Consultation works here as it did for the plea and the jury waiver: it informs the choice without making it. The lawyer explains what cross-examination will probe, which earlier statements may surface, how the client has held up in preparation, and what the defense looks like without the testimony, and then recommends. The recommendation is advice, and the client may decline it.

The reservation protects the choice in both directions. Counsel who believes the testimony would help cannot put the client on the stand over a refusal, and counsel who believes silence is safer cannot rest the case over the client's insistence, as the lawyer in the scene above could not.

Does the defendant's authority over her own testimony reach the rest of the defense case? It does not. The rule names whether the client will testify and no one else's testimony, so every other witness falls under the ordinary division, in which the lawyer consults the client about means and then acts.³³ Consultation keeps the client informed and gives the client a chance to object, while the lawyer remains free from second-guessing on matters of professional expertise.³⁴

The testimony clause also appears only in the criminal-case sentence of Rule 1.2(a). A lawyer in a civil matter finds no such clause there, because the only decision the rule reserves in every kind of matter is settlement.³⁵