April 3, 1996
If counsel for the opposing party offers to resolve a pending dispute through alternative dispute resolution forums, a lawyer is required to convey that offer to the client.
References: MRPC 1.2(a), 1.4, 2.1.
The Committee has been asked whether a lawyer is required to convey to a client an offer from the opposing party to resolve the pending dispute between the parties through alternative dispute resolution forums.
MRPC 1.2(a) provides as follows:
"(a) A lawyer shall seek the lawful objectives of a client through reasonably available means permitted by law and these rules . . . . A lawyer shall abide by a client's decision whether to accept an offer of settlement or mediation evaluation of a matter."
The Comment to MRPC 1.2 states that a client has a right to consult with the lawyer about the means to be used in pursuing the objectives of the representation of the client. The lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client with regard to what expense will be incurred in the use of various means. Even if the client has given the lawyer authority to determine all procedural matters, the settling of a dispute through alternative dispute resolution forums is not a technical or legal tactic the use of which can be determined by the lawyer independent of consulting with the client with regard to the various elements of the forum, including the cost of the procedure. By offering to settle the dispute through means other than the public forum of trial, the proposal is akin to an offer of settlement which must be conveyed to the client.
The lawyer is obligated to keep the client informed. The duty to communicate is stated in MRPC 1.4 as follows:
"(a) A lawyer shall keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information. A lawyer shall notify the client promptly of all settlement offers, mediation evaluations, and proposed plea bargains.
"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Emphasis added.
The Comment to MRPC 1.4 suggest that the lawyer is to provide a client with sufficient information which will allow the client to make reasonable decisions concerning matters of the objectives to be achieved and the means by which the objectives are to be pursued, and to make informed decisions about the representation. The lawyer is obligated to communicate to the client an offer to settle by an alternative dispute resolution forum and further to communicate to the client all information regarding the particular forum, sufficient to allow the client to determine whether the client wishes to proceed in that manner. Information such as the cost, whether the decision-maker is a single individual or panel of individuals, the format of the presentation to the forum, whether the decision is binding, the length of time before a decision is rendered, and the general objective of the forum all have a bearing on the client's decision. The lawyer as an advisor to the client must give straightforward honest statements regarding alternative dispute resolution forums.
MRPC 2.1 states:
"In representing a client, a lawyer shall exercise independent professional judgment and shall render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."
A decision to accept or reject an offer of alternate dispute resolution may be weighed in the context of other considerations than simply the contested legal matter. A lawyer should alert a client to all those factors.
The Pennsylvania Bar Association considered a similar question and in Pennsylvania Op 90-125 stated that a lawyer must inform the client when opposing counsel proposes mediation of the matter and must abide by the client's decision to accept or reject the offer to mediate, unless the client has instructed the lawyer to make all procedural decisions in the case. To emphasize the duty of the lawyer to inform the client of this offer, the Pennsylvania Opinion stated:
"If the lawyer fails to convey the mediation proposal to the client, he may not charge the client the expense of trial preparation if these expenses are incurred as a result of the lawyer's failure to communicate the offer."
We agree. Therefore, if counsel for the opposing party offers to resolve the pending dispute through alternative dispute resolution forums, a lawyer is required to convey that offer to the client.