Under the Texas Disciplinary Rules of Professional Conduct, lawyers owe their clients certain duties. “In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.” DR 1.01 (b) (1) (2), TDRPC, Tex. Gov’t Code Ann. tit.2, subtit. app. A. Disciplinary Rule 1.03 (b) states, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Black’s Law Dictionary describes the term “informed consent” as a principal of law which holds that in order to make a decision, a person must be aware and “informed” about the options and consequences of making the decision. Informed consent is “a person’s agreement to allow something to happen, made with the full knowledge of the risk involved and the alternatives.” Black’s Law Dictionary 346 (9th ed. 2009).
Lawyers have a duty to inform clients about the ADR processes, including mediation. There is a duty to inform a client of the risks and benefits of settlement. Lawyers get sued for malpractice for failing to explain the risks and benefits of settlement. Alford v. Bryant, 137 S.W.3d 916, 919 (Tex.App. Dallas 2004) rehearing overruled (July 19, 2004). In Alford a contract dispute settled in mediation. The original defendant then sued her attorney for failure to advise her of the risks and benefits of settlement. Id at 919. See a more complete discussion of Alford in the November 2012 Gregory Negotiation Report. Attorneys owe a duty to clients to make a full and fair disclosure of every facet of a proposed settlement. Bloyed v. General Motors Corp., 881 S.W.2d 422 (Tex.App. —Texarkana 1994, no writ).
In practical terms, what does all this mean in family law mediations? The lawyer for each side must explain the risks and benefits of the settlement offer as compared to the risks, uncertainty, costs, stress, time and benefits of going to court. How does the proposed settlement compare to a client’s BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) & RATNA (realistic alternative to a negotiated agreement). Each lawyer should explain the uncertainty of letting a stranger in a black bathrobe decide the case. As I frequently say, “Going to court is like taking your dog to a partnership between a veterinarian and a taxidermist. All you know for certain is that you will get your dog back.”
May all of you have a Joyful Holiday Season and Happy, Healthy, Safe New Year.