As important as it is for a lawyer to provide competent, diligent and zealous representation to clients, it is important for lawyers to protect themselves from their clients. We know that clients file grievances and lawsuits against lawyers. Thus, lawyer protect yourself.
Have a written contract, bill monthly, answer calls and emails promptly. Do not neglect matters. Meet all deadlines.
Even after a case settles in mediation or by a Rule 11 agreement, a client can file a grievance and/or a lawsuit against their lawyer. 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.” TDRPC. Lawyers have a duty to inform clients about 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). Alford involved a contract dispute settled in mediation. The former client sued her attorney for failure to advise her of the risks and benefits of settlement. Id at 919. The lawyer was able to get the mediator to testify under the offensive use doctrine that the lawyer had in fact explained the risks and benefits of settlement. 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.
After a family law case settled, Lopez sued his law firm claiming his lawyer induced him to accept an inadequate settlement agreement. The firm moved to compel arbitration. Royston, Razor, Vickery, & Williams, LLP v. Lopez, ___S.W.3d___, 2015 WL 3976101, No. 14-0109 (Tex. 2015) (06-26-15). Lopez was successful in avoiding arbitration in the trial court and appellate court, but not in the Texas Supreme Court.
Clients have tried to get out of Mediated Settlement Agreements by claiming that they did not understand the agreement because it was not explained to them or that the client was not competent or that the lawyer forced the client to sign the MSA.
Suggestion: Have your client initial each page of the MSA and add the following language to every MSA you do:
“Each party to this Mediated Settlement Agreement has been advised by each party’s lawyer of the advantages and disadvantages of signing this Agreement. Each party agrees and acknowledges that this Agreement is better than the alternative of going to court and taking on the financial strain, emotional strain, uncertainty and risks of a contested trial.”
“Each party to this mediation affirms by signing this Agreement that each party is mentally and physically able and capable of participating in this mediation and has willingly and voluntarily made informed decisions about this agreement without being influenced by medications, drugs, alcohol, stress, force, duress, threats or fatigue.”
Suggestion: To avoid the issues in the Texas Supreme Court listed above, put the following language in your employment contract:
“Client has read and understands all provisions of this contract. Law firm has explained to client the advantages and disadvantages of signing this contract. Client had an opportunity to consult with another attorney about the provisions of this contract prior to signing this contract. Client made an informed, voluntary decision before signing this contract, including the provisions about arbitration. “