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ETHICS OPINION 235
NUMBER 235 1925
Question. Canon 8 of the American Bar Association contains the following: “Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation.”
Canon 9 contains the following; “A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
Assuming that counsel for one of the parties to a pending litigation are authorized by the client to make an offer of settlement, and they communicate such offer to counsel for the adverse party and such counsel assumes to reject the offer on the ground that he regards it as inadequate and unfair to his client and refuses to submit it to his client for consideration, in the opinion of the Committee is it professionally improper for the counsel who have offered the compromise then to notify the counsel for the adverse party that since he will not submit the offer of compromise to his client, a direct offer of such compromise will be made to the client, provided that counsel intending to make the offer personally to the adverse party notifies the counsel of the latter of the time and place when such offer will be made so as to afford him an opportunity to be present and advise his client, if he so desires.
Answer. It is the opinion of the Committee that it would not be proper for the attorney offering the settlement to approach the client of the opposing attorney and lay before that client the settlement offered even though the opposing attorney had been notified as set forth in the question.
The Committee recognizes the principle that settlements of controversies are favored and fair adjustments should be advised as set forth in Canon 8 of the American Bar Association. This Canon is primarily to guide an attorney in advising his own client. It is hardly meant to be a basis for compelling the attorney for an adverse party to submit to his client a settlement which that attorney believes should not be considered. The offer having been made, the duty then devolves upon the attorney to whom it is made if he thinks it a fair adjustment to comply with Canon 8. The failure, however, of one attorney to observe a Canon would not in our opinion justify a violation of another Canon by the opposing attorney.
A client selects for his attorney one in whose soundness of judgment and in whose legal ability he has confidence and that attorney is placed in charge of his client’s interests. He knows the circumstances as to his client and as to his side of the case and it is for him to judge what to do when a settlement is proposed and his judgment should prevail, and the lawyer proposing the settlement should abide by Canon 9, which discountenances the procedure contemplated by the question.