Is the lawyer or client in charge? Ask the Lawyer
Q: I have not been in a lawsuit before. So far, there are a few issues where the lawyer and I clash, but I am not clear just who makes the final decision. Is it me or the lawyer?
B.P., San Marcos
A: California Rule of Professional Conduct 1.2(a) provides: “A lawyer shall abide by a client’s decisions concerning the objectives of representation and … shall consult with the client as to the means by which they are to be pursued.” You can find Rule 1.2 online, and there is discussion of interest that follows it.
Among the decisions the client can make are whether to file a lawsuit, if settlement is authorized, whether to waive a particular right (such a jury or court trial), and the outcome that is sought. The lawyer can be the decision maker on legal strategy and tactics, day-to-day handling of the matter, basic judgment calls, and decisions of a procedural and legal nature.
Where trouble can arise is if the lawyer takes steps without the client’s informed consent, or where there is a significant conflict as to how the client wants to proceed versus what the lawyer recommends. If a conflict between you and the lawyer runs deep, to such an extent there is a fundamental breakdown in the relationship, the lawyer has an ethical duty to withdraw or to be replaced.
I often think of the client as “the boss” who hired me. My role is: (a) to advocate, (b) to seek to get the result the client wants, if feasible, but with notice of no guaranty, and (c) to act in a manner that is consistent with both my ethical responsibilities and my resolve to to effectively represent the client.
Q: We are on a hourly basis with the lawyer. The last two bills have surprised us. They just seem very high. Is there a recommended way of dealing with this kind of situation?
L.M., City of Industry
A: The bills surprise you; this suggests to me that you were not prepared for the amount of work to be done. I am presuming you knew the hourly rate, who was doing the work, so what is it that surprised you? Did the lawyer keep you apprised of activities in the case, the amount of time needed, and any of the out of pocket costs that were being incurred?
It would be helpful to be able to look over the billing statements. Do they provide adequate detail of what was done, per task? Block billing, where a series of activities are lumped into one time frame, is not how a lawyer is supposed to itemize the time spent.
Bottom line, you can seek to talk it out with the lawyer and/or communicate in writing. You can also try to avoid this happening again by establishing a prior approval process. Of course you can ask for a courtesy discount.
If the situation breaks down, there is an attorney-client fee mediation/arbitration process through the Los Angeles County Bar Association which you can find it on line at https://lacba.org/?pg=attorney-client-mediation-and-arbitration-services. But, if you wind up there it likely means you and the lawyer have parted ways. Bottom line, be proactive so you may not have another unpleasant surprise.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional. Sokol can be reached at Ronsesq@gmail.com.