March 33, 1982
As plaintiff's lawyer a mediation award has been secured in favor of plaintiff but that the client cannot be located. Can a lawyer ethically settle the matter in the client's absence. The opposition has offered to settle the matter for the amount of the mediation award, that the mediation award is not binding and that the client has not agreed to accept whatever amount the award may be.
"The right to make decisions which affect the merits of a cause or may substantially affect the rights of a client rests solely with a client, unless the client is mentally or physically disabled so as to be incapable from making a considered judgment, it is unethical for a lawyer to make such decisions."
The committee opined in CI-558 that an action may not be settled on behalf of multiple plaintiffs without the consent of each and every plaintiff. While that opinion concerned multiple plaintiffs, the principle upon which it rests is directly applicable, that is, that a cause may not be settled without the express consent of the client.
Michigan courts have determined as a matter of law that a lawyer has no general power to compromise the client's action. See Hartman v. Frontier City, Inc. 20 Mich App 274 (1969).
It, therefore, appears clear as a matter of ethics that a lawyer may not settle a client's case absent the client's express consent. However, the lawyer should make reasonable efforts to locate the client. If the lawyer is able to locate the client the lawyer can determine whether the settlement should be accepted. If the lawyer is unable after reasonable effort to locate the client, and trial of the cause without the client's presence is not feasible, it would seem it would be proper for the lawyer to seek withdrawal under DR 2-110(C)(d).