There are many styles of negotiation. There are many techniques, tools, and even ploys. Great negotiators pick their strategy purposefully and engage it earnestly. Lately, there have been rumors of some lawyers expressing an inability to accept some settlement offers.
This could be the old "limited authority" gambit, albeit with a twist. Some would say it is perhaps the "good cop/bad cop" routine. There are strategies in negotiation, and often the greatest failure one can commit is in acquiescing to the opposing side's choice of the day instead of sticking to your own negotiation style and process.
In the "limited authority," you are negotiating with someone who either lacks full authority or wants you to believe they lack it. This gives that person both deniability ("not my decision") and allows them to strive to gain your trust as you, together, strive collaboratively to convince the antagonist (the higher authority).
Used car dealers have used this one for eons and may have invented it: "I don't know; I will have to run it by my manager." This is also sometimes called "the turnover" when it is used to bring someone else directly into the negotiation as a new participant, as opposed to the objectionist foil in the "limited authority" above.
Ever wonder why "car salespeople" are just below Senators and Members of Congress in the public trust perception category? Perhaps there is a reason that "lawyers" don't typically fare much better.
There are multiple reasons to engage the "I can't, but I know who to turn to ..." Some are undoubtedly legitimate. Others, perhaps not so much.
The recent rumor is of some alleged parameter-setting or "range-setting" in the settlement negotiations regarding injured workers. People are describing being told that a particular settlement offer here or there is being rejected by the claimant's counsel (not the claimant, their lawyer).
The conversations are allegedly brief. The lawyers describe how their employer, a law firm, has set a bracket or "range" that the firm believes a particular case should be worth. The employee lawyer expresses that they can only settle within that range and may communicate, "I cannot accept 'X,' but I will take it to our firm committee."
There are perhaps some questions about a process in which a firm committee sets a permissible settlement range. There is also the simple fact that, despite this being described, it is rumor and innuendo at the moment. That said, it is also perhaps possible for individuals to hear such representations firsthand during their negotiations.
I can find no prohibition on law firms forming committees. There is similarly no prohibition on lawyers kibitzing about their cases around the office water cooler, courthouse elevator, or elsewhere. Over my years of practice, I gleaned a great many helpful suggestions in such conversations.
I even participated in a firm technology committee once upon a time. Their conclusion was that a law firm URL was a waste of money and that this internet thing was just another fad. Collectivity does not guarantee wisdom. Occasionally, it merely delivers delay and collective confusion. That is story for another day.
Will a firm committee have all the knowledge of case particulars that the actual attorney possesses? For that matter, is it possible for a party (claimant or employer) to have pertinent information they do not share, or fully share, with their attorney? Who is best situated to make an informed settlement decision?
All that said, there are obligations for lawyers. Law firms also, but not so much.
The lawyer is fortunately not left adrift in a sea of uncertainty when their employer firm forms such a hypothetical committee and perhaps tells them that their legal judgment is subject to committee recommendation or review. To make life even easier, there are clear rules on the parameters of lawyer involvement in settlement.
The following are quoted from the Rules Regulating The Florida Bar, mandatory guidance for all lawyers, whether they are overseen by a firm committee or not.
Rule 4-5.4 (d) Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
Translation: a committee cannot tell the firm employee, the lawyer, what to do. The "employer" (law firm) cannot "direct or regulate the lawyer's professional judgment." The firm or other employer might make recommendations or provide advice or tools, but the professional judgment of the lawyer is critical. If that does not meet with the employer firm's approval, the lawyer/firm relationship may suffer. Nonetheless, that is their interest, not the client's.
Moreover, clearly, the big decision, resolution, is the client's:
RULE 4-1.2 OBJECTIVES AND SCOPE OF REPRESENTATION (a) Lawyer to Abide by Client's Decisions. A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to subdivisions (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to make or accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. (Emphasis added).
Translation: (none needed, but ...) "A lawyer shall abide by a client's decision whether to make or accept an offer of settlement of a matter." The decision to settle or not is the client's. This is also reiterated and publicized by The Florida Bar in its Consumer Guide To Clients' Rights (below). There is no limitation such as "subject to the lawyer's approval" or "the lawyer's firm's approval."
Lawyers may make recommendations, or even strong recommendations. Lawyers and clients may differ. There is no rule that says everyone must agree or even agree to disagree.
There are Professionalism Expectations, which instruct that in the case of "irreconcilable" disagreements with a client, the lawyer must provide diligent representation until the lawyer-client relationship is formally dissolved in compliance with the law and the client’s best interests. (Emphasis added). (See R.Reg.Fla.Bar 4-1.16, Declining or Terminating Representation.) See also Merriam-Webster: irreconcilable—"impossible to reconcile."
The Rules Regulating The Florida Bar also contemplate conflict in RULE 4-1.7 Conflict of Interest; Current Clients. The Comment to that rule notes:
"Loyalty to a client. Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person, or from the lawyer’s own interests."
Translation: the lawyer's relationship with the client requires loyalty to the client, even in the face of "the lawyer’s own interests" or responsibilities to a "third person" (such as a law firm).
There are persistent challenges and questions about how the rules are interpreted and enforced. One might consider the following:
"RULE 4-8.4 MISCONDUCT A lawyer shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;"
"RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT (a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority."
Mediator Ethics Advisory Committee, Advisory Opinion MEAC 2011-003 concludes that "a certified mediator may report an attorney's misconduct, solely for the internal use of the body conducting the investigation of the conduct, without violating ethical duties."
All of that said, some hearing of such a rumored "firm committee" will see a parallel to the instances in which an employer or carrier ends a negotiation with "I will have to get further approval" or "the tentative deal will be subject to approval of ____________." As noted above, this may or may not be a negotiating tool. Anyway, there are certainly parallels to the "firm committee" discussion.
Nonetheless, those instances are not the same. They are the internal workings of a party that wishes to utilize some internal process or procedure. These are not instances in which a defense lawyer is saying, "The E/C cannot settle until my law firm committee approves." One example is internal to a party, and the other is perceived as a law firm prohibition or hurdle for the lawyer and the client.
An E/C delaying for internal approval by someone(s) is more akin to an injured worker who wants time for discussion with a significant other, faith professional, children, or similar confidant(s). In both cases, that worker or E/C delaying for such consultation is a decision of the party, the client, and is not the same as a lawyer even appearing to say that settlement cannot occur without the approval of a law firm or its committee.
In conclusion, the "committee" is presently a rumor, and may bear no consideration. A negotiator faced with such a perceived or expressed limitation may nonetheless have much to think about.
You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire case, including the amount recovered, all expenses, and a precise statement of your lawyer's fee. Until you approve the closing statement, your lawyer cannot pay any money to anyone, including you, without an appropriate order of the court. You also have the right to have every lawyer or law firm working on your case sign this closing statement.""You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer's ability.""You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers during the trial must be immediately communicated and you should consult with your lawyer regarding whether to accept a settlement. However, you must make the final decision to accept or reject a settlement." (Emphasis added).
