Malpractice, ADR and Client Expectations

Way back in 1997, John Blumberg of the Blumberg Law Offices in Long Beach California asked in a Daily Journal article whether lawyers had a duty to give ADR advice.

Alternative dispute resolution, wrote Blumberg,

has reached such a level of acceptance and availability that failure of an attorney to consider its possibilities or to inform the client of its existence may amount to legal malpractice. This is not to say that every case must be settled. It is to say, however, that an attorney’s duty to a client includes “the obligation to attempt to effectuate a reasonable settlement of the . . . action where the general standards of professional care [require]

that the most reasonable manner of disposing of the action was by settlement.” Lysick v. Walcom (1968) 258 Cal.App.2d 136.

Even a client’s opposition to settlement, wrote Blumberg,

does not excuse an attorney’s duty to consider and advise the client about settlement. After all, the lawyer’s superior skill and knowledge is what the client is paying for. Lucas v. Hamm (1961) 56 Cal.2d 583, 591.

It is not uncommon, noted Blumberg

for the client to have an unwarranted faith in the righteousness of his or her position. The lawyer’s obligation is to bring rationality, objectivity and experience to bear on the matter.

The most compelling point in this still timely and cogent advice on ADR is the one about the client’s “unwarranted faith in the righteousness of his or her position.”

Often, attorneys bring their clients to mediators to help them restore the “rationality, objectivity and experience” the client needs to hear without damaging the attorney-client relationship. Many mediators have written about this process before me.

                        author

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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