Litigation is expensive and, for that reason, a large majority of cases settle out of court. In fact, statistics show that about 84% of tort cases settle prior to reaching the trial stage. The reason being is that cases that advance to trial can be very time intensive as well as costly. In many circumstances, accepting a smaller monetary settlement in lieu of a lengthy trial that may yield a greater monetary award may be worth it once trial costs are taken into consideration.
It is important for a plaintiff to understand how the settlement process works. Every attorney licensed to practice law in Maryland must adhere to the guidelines provided by the Maryland Lawyer’s Rules of Professional Conduct when it comes to settlement negotiations.
According to Rule 1.8 Conflicts of Interest: Current Clients: Specific Rules(h):
A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
This means that a Maryland lawyer is not authorized to accept any type of settlement without your consent. Your attorney’s job is to provide guidance and advice throughout the process in order to put you in the best possible position to succeed. Ultimately, the choice is yours alone as to whether you would prefer to have the claim heard at trial or to settle the case out of court.
When your attorney accepts a settlement without discussing the terms with you, they have violated a fiduciary duty that is owed to you. This takes place when a person with superior knowledge and experience, like an attorney, who is expected to exhibit trustworthy advice and counsel, takes advantage of that position to their advantage.
Usually, when a case gets to the point that you and your attorney have a good sense of what your claim is actually worth, you and your attorney will analyze your options. Your attorney will likely discuss with you what they think the value of going to trial is versus what they think the value of a settlement may be. If the other party in the action conveys a settlement offer, it is your lawyer’s responsibility to make you aware of that offer but under no uncertain terms may your lawyer accept a settlement offer without your informed consent. The pros and cons of taking the offer should be thoroughly discussed and you will then be able to make an informed decision. You are the only person who decides whether to settle your claim. Your lawyer’s job is to simply act as your agent.
If your attorney tries convince you to accept the first settlement offer received from the other party, this may be a warning sign that your attorney does not have your best interest in mind. First offers are often on the low end and while the attorney may think that they are doing the right thing by urging you to take an early offer, it may signal inexperience or a lack of competence.
There is only one scenario where an attorney may settle a case without your knowledge and that is by way of a signed power of attorney. This is a form you can complete that grants legal decision making authority on your behalf to another person. Even if you verbally instruct your attorney at the outset of the case to settle for any amount, your attorney is not authorized to do so without your signed consent.
If you find that you are uncomfortable with the way your attorney is handling your case, it may be best to end the lawyer/client relationship and seek new representation.
At Gilman and Bedigian, we take a collaborative approach to each case. Each client gets the individualized attention of our team and we believe in taking the time to thoroughly discuss any and every matter which may be important to a plaintiff we represent. If you or someone you love has been injured, let us work with you to get the compensation you deserve. Contact our team today for a free consultation.