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Monday, August 22, 2011

Relaying Settlement Offers to a Client is Never Just a Formality

On a recent episode of Suits, after a $15 million settlement offer was relayed, the lawyer declined huffily without speaking with his client. He told the client later that he was relaying it to them only as a formality. I should be glad that at least the lawyer in this show discussed the offer with the client. In too many shows and books, the lawyer refuses or accepts offers on their own.

The ABA Model Rules of Professional Conduct, which every state but California uses as the model for their own rules, say:
1.4(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
The comments to the rule explain:
  [A]lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.
As to whether the lawyer has to accept the client's decision, the rules are clear:
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. 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, whether to waive jury trial and whether the client will testify.
Relaying the settlement offer to the client isn't a just a formality - it's a requirement. It's not that hard to write the scene correctly. The proper response is, "I'll relay it to the client, but I'll recommend against it." The only way the lawyer can shoot it down is if the client already said they wouldn't accept anything under x-amount and authorized the lawyer to turn down anything under that number.

Thursday, August 11, 2011

Unauthorized Practice of Law on Memphis Beat

I enjoy the TNT show Memphis Beat, about a singing cop (played by Jason Lee of My Name Is Earl) and an offbeat police department in Memphis. They don't usually get my lawyer hackles up too much, but the latest episode, Ten Little Mempians, had a howler of a mistake. A character in the show, an ex-con who graduated from law school, decided he wanted to represent his boyfriend who was being accused of a crime. He made the statement that, in Tennessee, there's a case which allows graduates of an accredited law school who are awaiting bar exam results to represent clients.

My shoe almost went through the TV screen. One of my pet peeves, a really lazy writing mistake, is having characters engage in the unauthorized practice of law. I knew that here in Florida there's no way an unlicensed attorney could represent anyone. So I checked Tennessee law and found their unauthorized practice of law statute, which says in pertinent part:

"No person shall engage in the'practice of law' or do 'law business' . . . unless such person has been duly licensed therefore."

Pretty darned clear. Lawyers have to be licensed. That means they have to pass the bar and a background check in their state. But I double-checked. I called the Tennessee Attorney General's Office and spoke to Colleen Doty, Assistant Attorney General. She works in the Consumer Protection Division handling Unauthorized Practice of Law, and she was kind enough to aid me in my quest to make shows watchable for lawyers. She confirmed that there is no such case allowing a law grad to practice law without a license. She also chuckled knowingly when I said I write about shows that get the legal stuff wrong: "You must have lots to write about."


How could the writers have fixed this glaring problem? How about having the boyfriend be a newbie lawyer? Just sworn in yesterday is better than never sworn at all. It was silly and irritating and really ticked me off.

Unauthorized practice of law is a crime. Every lawyer and law student knows this. TV shows and books that have law grads, friends, neighbors, family members representing a character in court or as a lawyer when they aren't a lawyer ought to also show that person getting cuffed and hauled off to jail. No judge or police officer in their right mind would allow an unlicensed person to represent a client.

Do Colleen Doty and me a favor so we don't have to fetch our sneakers out of a smoking, broken TV screen. Make sure your characters are lawyers before you have them practice law. Screw up and I'll sic the Tennessee Attorney General on you.

Do check out Memphis Beat though. I think you'll like it.