Can a California Attorney Settle My Personal Injury Claim Without My Consent?
Perhaps one of the most frequently asked questions that we get at our law is “will my attorney let me know before my personal injury case is settled?” Read on to find out what your rights are as a client.
California Law Regarding All Settlement Communications
If you’ve filed a personal injury lawsuit (car accident, motorcycle accident, slip and fall, dog bite, brain injury, etc.) anywhere in California, this question has crossed your mind. This is a very important and critical question because it pertains to an important right as a client. Thankfully, California rules of ethics provide clear guidance to attorneys regarding communicating settlement offers to clients.
This guide examines client consent requirements, ethics rules, exceptions and steps you can take to enforce your settlement participation rights.
California Law Mandates Client Consent On All Personal Injury Settlement Offers
The State Bar of California Rules of Professional Conduct states that an attorney shall:
– Keep clients reasonably informed about significant developments in their cases
– Explain matters to clients to the extent reasonably necessary for clients to make informed decisions
– Abide by client decisions about settlement objectives and terms
Additionally, ABA Model Rule 1.2 states that a lawyer “shall abide by a client’s decision whether to settle a matter.”
These two rules when read together mean your attorney cannot negotiate or accept any settlement offer or communication – large or small – without your explicit consent. And that consent always lies with the client and no one else.
The attorney may, and should, provide guidance as to a settlement offer, however the ultimate decision to accept a settlement offer comes down to the client and not the attorney. This is true with respect to a personal injury claim, such as a car accident, or any other type of lawsuit filed in any state court in California.
Limits On The Client’s Power To Settle Claims in California
However, there are two scenarios where a California lawyer may potentially finalize settlement decisions without a client’s approval:
- Court Appointed Guardian ad Litem: A Guardian ad Litem (GAL) is a person appointed by a court to represent the best interests of a child or an incompetent adult in lawsuits. In situations where a GAL has been appointed, the client does not necessarily have the final say in the settlement. Rather, the GAL is the one who approves the settlement. But even in these cases, the court will hold a hearing and review the settlement to make sure that it is in the best interest of the client. The court’s role is to make sure the client is adequately protected by the settlement.
- Liens: If a client has outstanding medical bills, child support or other liens, then an attorney may independently negotiate payment from the settlement amount with these lien holders.
However, barring these specific situations, attorneys lack any unilateral power to settle your case without your fully informed and written consent. Any lawyer suggesting otherwise violates California rules of ethics and will be subject to disciplinary action.
When Is Client’s Consent Required To Settle a Personal Injury Claim In California
A client must consent to any and all settlement offers at two important stages in a personal injury claims process:
Approval of Offer Terms
In California, your attorney should thoroughly discuss any personal injury settlement offer with you, including:
– Proposed dollar amount
– How it covers your claimed losses
– Terms or conditions you must abide by
Clients control the settlement process and should never feel pressured to immediately approve any offer. However, in order to make an informed decision, the attorney needs to explain the circumstances surrounding the offer, the possibility of obtaining a better settlement, and the strengths and weaknesses of your personal injury case. Insist your lawyer carefully reviews how the proposed amount accounts for the full scope of your financial, physical and emotional damages. Lastly, if you choose to decline the offer, you should consider the possibility of a protracted litigation process and ultimately trial, which could take years.
Signing Settlement Agreement
Once mutually acceptable terms are reached, you’ll be presented with a written settlement agreement to approve and sign before funds disburse.
Have your attorney explain each provision of the settlement agreement to you and their ramifications, especially the possibility of filing additional non-related claims against the defendants. Carefully read this binding legal contract in full before signing. It outlines critical details like the claims being released, the defendants, non-disparagement clauses, confidentiality terms, and payment timelines.
Understand that verbal settlement discussions mean nothing until a signed agreement makes it binding and final.
Your Options When an Attorney Settles Your Case Without Your Consent In California
If an attorney settles your car accident claim or any other type of personal injury case without consent, you have the following options at your disposal:
– You can file a complaint with the State Bar of California. The State Bar will investigate and may file a disciplinary action against the attorney.
– You can sue your attorney for professional negligence and malpractice if the settlement results in financial losses. Remember that the bar for proving attorney malpractice is high, but such cases underscore that lawyers must uphold your right to direct case decisions.
Tips for Clients to Protect Themselves in Personal Injury Settlements
As a general rule of thumb, attorneys should communicate with clients on a regular basis and provide access to their file. However, there are many attorneys who fail to do this as such it is incumbent upon the client to ensure that they remain actively involved in their case. Here are some suggestions to make sure you are fully aware of all offers that made on you personal injury case by the other side:
– Review your retainer agreement to make sure there is a clause which states that the attorney will not settle your case without your consent
– Request regular case status updates and a copy of the most important case documents
– Seek second opinions on offers if you feel you are being pressured by the attorney
– Insist on explanations about the various aspects of the settlement
– Never feel pressured into signing anything
– Follow up oral discussions with written confirmation
– Know that you have the final say
Settlement typically marks the end of your legal fight. So partner with an attorney who respects your role by maximizing your awareness and input throughout your case – including the pivotal resolution.
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