Schooled In Ethics: Who Gets To Decide - Attorney Or Client?

SCHOOLED IN ETHICS By: Paula Schaefer

Associate Dean for Academic Affairs and Professor of Law U.T. College of Law

WHO GETS TO DECIDE – ATTORNEY OR CLIENT?

In November 2020, an attorney for Luzerne County Pennsylvania filed a motion to recuse U.S. Supreme Court Justice Amy Coney Barrett. The attorney, Larry Moran, was representing the county in litigation about counting mail-in ballots in the 2020 election. In the motion, he asserted that the justice’s partiality might reasonably be questioned due to her unprecedented nomination and confirmation so close to the election. Moran thought that the motion was in the best interest of the county. He would later explain that his goal in filing the motion was to win. The Court had been split 4-4 on the mail-in ballot issue before Barrett’s appointment. He reasoned, “If Barrett recuses herself, we will prevail in the lawsuit.”1

Moran had filed many motions in the course of the litigation. By his count, more than thirty. He was never told to consult with the Luzerne County Council prior to filing a motion. In the case of the recusal motion, he did not go to the County Council to seek permission to file the motion or to discuss his plans, but he did talk to the County Manager.

Luzerne County Council members learned about the motion when it made national news just before a scheduled council meeting. Many of the eleven council members were angry that they had not been consulted in advance. Councilman Harry Haas said, “This is a colossal big deal. We were not informed about this. This is wrong. I am extremely upset.” Councilman Walter Griffith said that he did not believe it was proper to seek the justice’s recusal and that the county should have been alerted to “something of this magnitude.” The Chief Solicitor from the Lucerne County Office of Law said that while the county does not micromanage outside attorneys in litigation, the county should have been consulted on an issue like this.

Moran defended his decision to file the recusal motion without consulting with the County Council. “It was a decision by me, the owner of the firm that was assigned with the task of winning the lawsuit and defending Luzerne County,” he said.2

The issue faced by lawyer Moran is not novel. In the course of a client’s matter, hundreds of decisions must be made. Are those decisions the province of the attorney or the client? Many attorneys, like Moran, would say they are hired to make these decisions. A client hires an attorney because of the attorney’s expertise in deciding such matters. An attorney cannot possibly be expected to consult a client about every decision much less seek client consent before any action is taken.

The law of agency is instructive. The attorney-client relationship is an agency relationship. The client is the principal and the attorney is the agent. As the principal, the client is in control and gives authority to the attorney.3 Actual authority can be expressly given, “Defend me in this litigation.”4 Actual authority may also be implied from the client’s request and includes the acts necessary and incidental to achieving the client’s objectives.5 As an agent, the lawyer has an obligation to communicate information to the client/principal that the principal would wish to know or that is material to the agent’s duties.6

The law of agency is embodied in our professional conduct rules. Tennessee RPC 1.2(a) provides that a lawyer must abide by the client’s decision concerning the objectives of the representation and “may take such action as impliedly authorized to carry out the representation.” Tennessee RPC 1.2 refers the lawyer to RPC 1.4 concerning the duty to communicate with the client about the means of achieving its goals. Tennessee RPC 1.4(a)(2) provides, “A lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Tennessee RPC 1.4(a)(5) provides that the lawyer should explain that he or she cannot take any action that is prohibited by law or professional conduct rules if the client expects such assistance.

Comments to Tennessee RPC 1.2 discuss the allocation of authority between attorney and client when they disagree about the means to be utilized in the case. Comment 2 provides that clients normally defer to lawyers on such issues, “particularly with respect to technical, legal, and tactical matters.” In contrast, the comment notes that lawyers usually defer to clients on the expense to be incurred and the impact on third parties. The comment provides that “other law” may address how such disputes should be resolved, but that ultimately a fundamental disagreement can be resolved by the lawyer’s withdrawal or the client’s discharge of the lawyer.

These legal principles should guide the lawyer throughout the representation. The client is in charge. The lawyer has been given actual authority to make many decisions on the client’s behalf, but the lawyer must also reasonably consult with the client along the way. Some decisions are so insignificant that the lawyer need not consult the client. Other decisions obviously require consultation. The trick is determining when the client expects or reasonably could expect communication. In the case of attorney Moran and Luzerne County, the mistake was failing to communicate about such a significant decision before the motion was filed.

When attorney and client disagree about a decision, resolution of the dispute is relatively easy—easier than suggested by RPC 1.2, comment 2. Attorneys cannot budge on decisions that run afoul of the law or professional conduct obligations. And they certainly can make the case that they are in the best position to determine if a tactical decision—such as whether to file a motion—is wise. But as long as the decision is legal and consistent with professional conduct rules, the choice is the client’s. The client is the principal in the agency relationship. Even if the lawyer had authority to make the decision, the client can take that authority away. This is a basic tenet of the law of agency.7 The lawyer could, of course, withdraw from the representation in order to avoid carrying out that decision. But if the lawyer is to continue representing the client, the lawyer must abide by the client’s instructions.

That is what ultimately happened in the dispute between attorney Moran and his client. The Luzerne County Council voted to withdraw the recusal motion and Moran abided by the client’s decision.8 The issue caused the County’s Office of Law to rethink its instructions when it hires litigation counsel. The County’s Chief Solicitor Romilda Crocamo stated that in the future she will inform all outside legal counsel that her office should be notified of all planned filings in advance.9 That outside counsel likely will not be Moran. After the County Council’s public disagreement with Moran about the recusal motion, it voted 6 to 5 not to hire Moran’s firm in the future.10

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10 https://www.citizensvoice.com/news/election/county-council-wants-barrettrecusal-request-rescinded/article_f71f1f21-575e-5cfc-8607-861f089fc181.html. https://www.timesleader.com/news/807723/luzerne-county-council-votes-towithdraw-barrett-filing https://www.pahomepage.com/top-stories/luzerne-county-council-votes-towithdraw-motion-for-justice-barretts-recusal/?utm_medium=referral&utm_ campaign=socialflow&utm_source=t.co Restatement (Third) of Agency, § 1.01 (explaining that the fiduciary agency relationship arises when the agent assents to acting on the principal’s behalf and subject to the principal’s control). Id. at §§ 2.01, 2.02. Id. Id. at § 8.11. Id. at § 3.06(5) (an agent’s actual authority may be terminated by a manifestation of revocation by the principal to the agent). https://reason.com/volokh/2020/10/29/motion-for-justice-barrett-to-recuse-iswithdrawn/ https://www.timesleader.com/news/807723/luzerne-county-council-votes-towithdraw-barrett-filing https://www.post-gazette.com/news/politics-state/2020/11/11/Countycouncil-Luzerne-pennsylvaniacut-ties-law-firm-Barrett-recusal-motion/ stories/202011110111