Who Decides, Client or Attorney?
The gray area between when an attorney can exercise his discretion, and when he or she must have a specific grant of authority from the client, can be a confusing space. This article discusses the interaction between these areas within the context of litigation, and the limits on them.
August 17, 2022 at 10:00 AM
9 minute read
Certain rights and obligations are conferred solely upon attorneys concerning the actions they take when representing clients. However, in litigated matters, there are competing ethical obligations between a lawyer's right to take independent action and the obligation to involve clients in decision-making after they are fully informed by counsel about the ramifications of the decision to be made. The dividing line between the competing duties delegated to counsel and those reserved for the client remains somewhat unclear.
In this article, we will discuss the interaction between these respective duties within the context of litigation, and the limits on them.
An attorney derives the authority to manage the conduct of litigation on behalf of a client "[f]rom the nature of the attorney-client relationship itself." Hallock v. State, 64 N.Y.2d 224, 230 (1984); Matter of Barrow v. Penn, 247 A.D.2d 813 (3d Dept. 1998). This includes the authority to make certain procedural or tactical decisions. Gorham v. Gale, 7 Cow. 739, 744; Gaillard v. Smart, 6 Cow. 385, 388).
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