Who Decides Strategy: Lawyer or Client?

by Mark J. Hancock and Sunny S. Shapiro

Clients today are much more likely to insist on a decision-making role in contested matters. But what does an attorney do when his or her client disagrees about litigation strategy? To effectively address such attorney-client disputes?or avoid them altogether?it is critical to understand the allocation of authority between attorney and client, as well as the duties an attorney owes the court when pursuing litigation. It is also vital that counsel always exert best efforts to promote effective communications with the client.

Allocation of Authority
Generally, litigation attorneys have implied authority regarding "procedural" matters, but a client retains the right to make ultimate decisions affecting the client's "essential," or "substantive" rights (Blanton v. Womancare, Inc., 38 Cal. 3d 396, 403?405 (1985)). But there is no bright-line test to distinguish between procedural and substantive issues. The California Rules of Professional Conduct (CRPC) do not address the topic of allocating authority, but the American Bar Association's Model Rules of Professional Conduct make general reference to it. Though the Model Rules are not binding in California, they are instructive.

Model Rule 1.2 states, in part, that "a lawyer shall abide by a client's decisions concerning the objectives of representation and ... shall consult with the client as to the means by which they are to be pursued." The Comments to Model Rule 1.2 suggest that clients defer to the expertise of their lawyers, particularly on "technical, legal and tactical matters." The Comments further suggest that attorneys defer to their clients' instructions with respect to the cost of litigation or the effect of litigation on a third party. The Comments do not directly address how to handle disagreements on these topics, "[b]ecause of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interest of a tribunal or other persons." (See Model Rule 1.2, Comments 1 and 2.) Thus, when disagreement arises over how to pursue a client's litigation objectives, the attorney must rely on good communication skills, common sense, and principles reflected in statutes and case law.

Taking a Case to Trial
One common litigation dispute involves whether an attorney must take a given case to trial. For example, a client may not fully appreciate the economic benefit of an early case resolution compared to the cost and uncertainty of a potentially protracted trial, not to mention an appeal. The client's emotional involvement in a case may distort his or her perception of reality. Moreover, an attorney may develop doubts about the strength of a case as the evidence unfolds. In many situations, an attorney can avoid the entire problem of how to dispose of a weak case by conducting a thorough analysis before agreeing to pursue the matter. However, sometimes pre-representation analysis does not occur (or is not possible) because of statute-of-limitations concerns. And even if an attorney has conducted a thorough analysis, unexpected adverse evidence can still turn up during discovery.

Disputes over how to dispose of what an attorney considers a weak case can be difficult to resolve when a client is set on having his or her day in court. The client may not have a realistic appraisal of the chances of success?or the client's and the attorney's views of the case may conflict. Another distressing scenario can arise if the attorney develops an opinion?perhaps after seeing the client perform in deposition-that the client will not make a credible witness. Delivering that message is difficult, to say the least, because clients generally do not take such analysis lying down.

The Attorney's Duty
Once an attorney believes that a case lacks merit, then he or she needs to consider not only the duty to the client but also the duty to the court and the impact on other parties. CRPC 3-200 provides that an attorney shall not seek, accept, or continue to represent a client in bringing an action, conducting a defense, or asserting a position without probable cause. In addition, the rule provides that claims made or positions taken must be warranted under existing law, or constitute a good faith argument for modification or reversal of existing law. Also, the law says: "It is the duty of an attorney ... [t]o employ ... such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." (Cal. Bus. & Prof. Code § 6068 (d).)

Attorneys who pursue unmeritorious claims do so at their peril. Courts have been taking an increasingly unsympathetic view of attorneys who advocate cases that are deemed without merit, calling such tactics "an abuse of advocacy." In one recent patent-infringement case, for example, the court reversed a $51 million verdict and awarded $4.3 million in attorneys fees against a Minnesota-based manufacturer of surgical-navigation technology and the company's attorneys. The court ruled that the offending argument by the attorneys "distorted both the evidence and the law, misleading the jury into a plaintiffs' verdict," and that the case was filed solely to stifle competition rather than to protect a patent. The court stated that "[t]he fairness of the adversary system of adjudication depends upon the assumption that trial lawyers will temper zealous advocacy of their client's cause with an objective assessment of its merit and be candid in presenting it to the court and to opposing counsel." (See Medtronic Navigation, Inc. v. BrainLAB Medizinische Computersystems GmbH, 2008 U.S. Dist. LEXIS 13483 at *19 (D. Colo., Feb. 12, 2008).)

In California, prohibitions against pursuing claims without probable cause rest not only on CRPC 3-200 but also on section 128.7 of the Code of Civil Procedure, which allows sanctions to be awarded if there has been a violation of an attorney's certification. Section 128.7 states, in essence, that when an attorney presents arguments to the court, the attorney certifies that he or she is acting in good faith after reasonable inquiry has been made as to the merit of the attorney's position. The statutory text is rigorous: In essence, it provides that, by presenting an argument or position to the court, an attorney (or unrepresented litigant) is certifying that to the best of the person's knowledge, information, and belief, formed after a reasonable inquiry, that certain conditions exist. The conditions are that: (1) the party is not presenting the position for an improper purpose, (2) the claims and defenses are warranted under existing law or that reversal of the law is appropriate, (3) the allegations and factual contentions have evidentiary support after an opportunity for discovery, and (4) the evidence supports any denial of a contested matter. (See Cal. Code Civ. Proc. § 128.7(b).)

As the California Supreme Court has made clear, continuing to prosecute a lawsuit discovered to lack probable cause may constitute malicious prosecution and may subject the prosecuting attorney to civil liability. (See Zamos v. Stroud, 32 Cal. 4th 958 (2004).)

Communication Is Key
Attorneys who disagree with clients over whether a case should be tried may ultimately have grounds to withdraw from the action under CRPC 3-700(C)(1). However, before bailing out of a case, an attorney should make every reasonable effort to reach agreement with the client on how to proceed. Prompt and effective communication will be key to success.

Besides discussing with the client concerns about proceeding with the case, the attorney may take other approaches geared toward bringing the case-handling expectations of the client and the attorney into alignment. If the client is no longer listening to your legal advice, consider having a colleague intervene and offer counsel. Sometimes a fresh face or a new perspective, particularly from someone with significant experience, will help the client recognize the true risks and potential benefits of proceeding. Or, the attorney might bring a consulting expert into the discussion, so that the expert can explain weaknesses in the case that the client might not otherwise recognize. Another possibility is for the attorney to show the client case decisions or jury verdicts in similar cases, so the client can verify that the attorney is, indeed, providing sound advice.

Disputes Over Strategy
At trial, disagreements may arise over courtroom strategy. Appellate decisions demonstrate that the attorney retains the authority to make those tactical decisions. The California Supreme Court has noted that "in the course of a trial there be but one captain per ship. Any attorney must be able to make such tactical decisions as whether to call a particular witness, and the court and opposing counsel must be able to rely upon the decisions he makes, even when the client voices opposition in open court." (Blanton, 38 Cal. 3d at 404.)

The courts have also made clear that an attorney may refuse to call a witness even though his or her client desires that the witness testify. An attorney may also abandon a defense he considers to be unmeritorious (Linsk v. Linsk, 70 Cal. 2d 272, 277 (1969)). However, the decision-making authority given to an attorney at trial does not extend to making decisions on substantive or "fundamental" issues, such as whether to waive a jury trial. (See Blanton, 38 Cal. 3d at 411?412 (conc. Opn. of Bird, C.J.).) An attorney needs to obtain client consent in addressing substantive issues.

When handling an appeal, an attorney enjoys some autonomy in the selection of points to raise. The U.S. Supreme Court has held that defense counsel assigned to prosecute an appeal from a criminal conviction does not have a constitutional duty to raise every non-frivolous issue requested by the defendant. The Court reasoned that ceding the client blanket authority to structure an appeal seriously undermines the ability to present the case in accord with a lawyer's professional evaluation. Experienced advocates have emphasized the importance of winnowing out weaker arguments in order to focus on one central issue or, at most, on a few key points. "Selecting the most promising issues for review has assumed a greater importance in an era when the time for oral argument is strictly limited in most courts and when page limits on briefs are widely imposed." (Jones v. Barnes, 463 U.S. 745, 746 (1983).)

Notwithstanding the fact that these decisions give an attorney authority to make certain decisions at trial and on appeal, it is certainly preferable to have the client's full support before making them. Otherwise, the client will be unhappy, and it may become unreasonably difficult for the attorney to carry out the representation.

Withdrawal from a Case
Despite his or her best efforts, an attorney may not be able to reach agreement with a client regarding the best way of handling a case. If efforts to reach accord on fundamental issues prove unsuccessful, an attorney may be left with no viable option but to withdraw from representation.

CRPC 3-700 provides for both mandatory and permissive withdrawal. Choosing the correct option depends on the circumstances. Withdrawal is mandatory when an attorney knows, or should know, that the client is bringing an action, conducting a defense, or asserting a litigation position without probable cause or for the purpose of harassing or injuring any person (CRPC 3-700(B)(1)). Permissive withdrawal is allowed for a number of reasons, including when the client (1) insists on presenting a claim or defense that is not warranted under existing law and cannot be supported by a good faith argument for modification or reversal of that law; (2) seeks to pursue an illegal course of conduct; (3) insists that the attorney pursue an illegal course of conduct; (4) renders it unreasonably difficult for the attorney to work effectively; or (5) insists, in a matter not pending before a tribunal, that the attorney engage in conduct that is contrary to the judgment and advice of the attorney but not prohibited under the CRPC or State Bar Act. (See CRPC 3-700(C)(1)(a)-(f).)

In practice, these "permissive" circumstances allow an attorney to withdraw when a client insists that the attorney engage or assist in illegal or unethical actions or plans of action that are fraught with risk to the client (CRPC 3-700(C)(1)(a), (b), (c), and (e); CRPC 1-120).

One of the consequences of a disagreement over strategy can be a client's refusal to pay the attorney's bill. Under the CRPC, an attorney may withdraw if a client breaches an agreement or obligation relating to the attorney's expenses or fees (CRPC 3-700(C)(1)(f)). Likewise, under the ABA's Model Rules, an attorney may withdraw if the client "fails substantially" to fulfill a fee obligation, but only after the client has been given "reasonable warning" that the attorney will withdraw (Model Rule 1.16(b)(5)).

An attorney may also choose to withdraw if a client persists in pursuing an objective that, while not necessarily illegal, is one that the "lawyer considers repugnant or imprudent." (Model Rule 1.2, Comment 6.) The decision to withdraw may not be easy. Lawyers who contemplate getting out of a case may confront several demons, including a sense of failure and the loss of a client.

When seeking leave to withdraw from representation, timing may be critical, as judges are less likely to grant a motion to withdraw as the trial date nears or if withdrawal would otherwise severely prejudice the client (Vann v. Shilleh, 54 Cal. App. 3d 192, 197 (1975)). Court sensitivity to client welfare on the eve of trial underscores the need for an attorney to act promptly-particularly with respect to withdrawal-should that "doomsday scenario" be warranted.

Disagreements between attorneys and clients regarding the handling of litigation are not uncommon in today's rough-and-tumble legal world. Some of those disagreements can be challenging to resolve, especially if they involve the issue of whether there is probable cause to proceed with an action in the first place-a dilemma that gives rise to third-party liability considerations for the attorney. However, regardless of the nature of the dispute, the best chance of resolution comes when the attorney (1) vigilantly monitors the case for areas of potential disagreement, (2) has an understanding of the scope of his or her decision-making authority and of the applicable ethical rules, and (3) is willing to put forth best efforts to communicate promptly and patiently with the client.

As good attorneys know, disputes are best resolved by talking them through. Withdrawing from a case should be the last resort when a disagreement arises between lawyer and client.

Mark J. Hancock is a partner and Sunny S. Shapiro is a senior associate with Sedgwick Detert Moran & Arnold in San Francisco. They both specialize in defending professional liability claims.

---