NUMBER 236 1926

Question. A nonresident absentee is named as a defendant in a suit to determine the rights of all parties to local property and is served with the summons and complaint outside of the local jurisdiction. He consults legal counsel in respect to the suit, who is not admitted to practice before the Court in which the suit is pending. He is advised to employ admitted attorneys to appear and defend his rights, and does so, and such attorneys, not personally known to the client, are recommended by such counsel for such employment. They are so employed under instructions from the client to regard said counsel as the representative of the client, to confer with him and act (with professional propriety) in the client’s interest under his supervision, In the course of the litigation an offer of settlement is made to the attorneys of record which they transmit to such counsel with a full expression of their opinion of the questions of law and fact involved, the rights of the client, and the chances of a favorable, and of an unfavorable, decision upon his claims in the litigation. The counsel declines to submit the offer to the client on the ground that he, the counsel, regards the offer as inadequate and unjust to his client. The attorneys for the other parties who have made the offer and desire its acceptance are advised of the conditions of the employment of the attorneys of record, their instructions, the transmission of the offer and the refusal of the counsel to submit the offer to his client for the reasons stated by him. The attorneys who have made the offer insist that it is the professional duty of the defendant’s attorneys to submit the offer to their client for his personal information and the exercise of his personal judgment. This the defendant’s attorneys decline to do while their instructions remain unrevoked, maintaining that it would be a violation of their proper relations to the counsel first consulted and who remains the legal counselor of the client.

In the opinion of the Committee which of the two positions is professionally correct?

Answer. It is the opinion of the Committee in the circumstances stated, that the defendant’s attorneys are not obliged to submit the offer to their client at the request and upon the insistence of the attorneys for the plaintiff. If, however, the attorneys for the defendant are of the opinion that the offer should in the client’s interest be submitted to him, they should so advise the counsel; and if the counsel still refuses to submit it, then they should advise the client, and the counsel that a difference of opinion has arisen and seek instructions from the client, making such explanation to the client as may enable him to give such instructions.

Canon 7 of the American Bar Association contains the following, in which the Committee concurs:


When lawyers jointly associated in a cause cannot agree as to any matter vital to the interest of the client, the conflict of opinion should be frankly stated to him for his final determination, His decision should he accepted unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to cooperate effectively. In this event it is his duty to ask the client to relieve him.