Authority and lawful assistance - Decision-making authority—...

Learning Outcomes

After reading this article, you will be able to distinguish between actual and apparent authority in the lawyer-client relationship, identify who controls key decisions in representation, and apply these concepts to MPRE-style scenarios. You will also understand the consequences of exceeding authority and how third parties may rely on a lawyer’s apparent authority.

MPRE Syllabus

For the MPRE, you are required to understand the allocation of decision-making authority in the client-lawyer relationship and the implications of actual and apparent authority. This topic is tested under the following syllabus points:

• Identify the respective roles of lawyer and client in making decisions about objectives and means of representation.
• Distinguish between actual authority (express and implied) and apparent authority in the context of legal representation.
• Analyze the enforceability of lawyer actions taken with or without proper authority.
• Recognize the consequences of unauthorized settlements or agreements.
• Apply the principles of authority to third-party reliance and potential liability.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following decisions is reserved exclusively for the client?
   1. Whether to call a particular witness at trial
   2. Whether to accept a settlement offer
   3. Which legal arguments to raise in a motion
   4. The order of presenting evidence
2. A lawyer settles a case without the client’s consent. Is the client bound by the settlement?
   1. Always
   2. Never
   3. Only if the lawyer had actual authority
   4. Sometimes, if the opposing party reasonably believed the lawyer had authority
3. Apparent authority in the lawyer-client relationship is best described as:
   1. Authority expressly granted by the client
   2. Authority implied by the client’s instructions
   3. Authority a third party reasonably believes the lawyer possesses based on the client’s conduct
   4. Authority to act in emergencies only
4. If a lawyer agrees to a settlement without actual authority but the court enforces it, what recourse does the client have?
   1. None
   2. The client may seek relief from the court and/or pursue a malpractice claim
   3. The client is always bound
   4. The lawyer is automatically disbarred

Introduction

A lawyer’s authority to act on behalf of a client is central to the ethical and practical operation of legal representation. The Model Rules of Professional Conduct draw a clear line between decisions reserved for the client and those entrusted to the lawyer. Understanding the difference between actual and apparent authority is essential for determining when a lawyer’s actions are binding on the client and when third parties may rely on those actions.

Key Term: Actual Authority
The power a lawyer has to act on behalf of a client, based on the client’s explicit instructions (express authority) or as reasonably implied from the circumstances (implied authority).

Key Term: Apparent Authority
The power a lawyer appears to have to third parties, based on the client’s conduct or manifestations, even if the lawyer lacks actual authority.

Decision-Making in the Lawyer-Client Relationship

The Model Rules allocate decision-making as follows:

• Client’s exclusive decisions: The client controls the objectives of the representation and certain fundamental choices, including whether to settle a civil case, enter a plea in a criminal case, waive a jury trial, or testify.
• Lawyer’s decisions: The lawyer determines the means by which the client’s objectives are pursued, such as procedural tactics, motion practice, and legal strategy, after reasonable consultation with the client.

Key Term: Objectives of Representation
The ends or goals the client seeks to achieve in the legal matter, such as the desired outcome of litigation or a transaction.

Key Term: Means of Representation
The methods, strategies, and legal steps chosen by the lawyer to achieve the client’s objectives.

Actual Authority: Express and Implied

A lawyer’s actual authority comes from the client:

• Express authority: The client directly instructs the lawyer to take a specific action (e.g., “You may accept any settlement over $50,000”).
• Implied authority: The lawyer is empowered to take actions reasonably necessary to carry out the client’s objectives, unless specifically restricted.

Lawyers must not act beyond the scope of their actual authority. If they do, they may be subject to discipline and civil liability.

Apparent Authority and Third Parties

Even if a lawyer lacks actual authority, a client may be bound by the lawyer’s actions if a third party reasonably believes, based on the client’s conduct, that the lawyer had authority. This is known as apparent authority.

For example, if a client allows a lawyer to negotiate and communicate with opposing counsel without limitation, the opposing party may reasonably assume the lawyer has authority to settle, unless notified otherwise.

Key Term: Third-Party Reliance
The principle that a third party may rely on a lawyer’s apparent authority if the client’s conduct reasonably led to that belief.

Settlements and Unauthorized Agreements

Settlements and other agreements that affect a client’s substantive rights require the client’s express consent. If a lawyer settles a case without actual authority, the settlement may still be enforced against the client if the opposing party reasonably relied on the lawyer’s apparent authority. However, the client may seek relief from the court or pursue a malpractice claim against the lawyer.

Worked Example 1.1

A client instructs her lawyer not to accept any settlement below $100,000. The lawyer, without informing the opposing counsel of this restriction, agrees to settle for $90,000. The opposing counsel believes the lawyer has full authority.

Question: Is the client bound by the settlement?

Answer:
The client may be bound if the court finds that the opposing party reasonably relied on the lawyer’s apparent authority, since the client did not communicate any limitation to third parties. The client may seek relief from the court and pursue a malpractice claim against the lawyer for exceeding actual authority.

Worked Example 1.2

A lawyer, without consulting the client, agrees to a continuance in a civil case. The client later objects, claiming the lawyer lacked authority.

Question: Was the lawyer’s action proper?

Answer:
Yes. Decisions about scheduling and procedural matters are typically within the lawyer’s implied authority. The lawyer is not required to consult the client on every tactical or scheduling issue unless the client has expressly limited the lawyer’s authority.

Exam Warning

On the MPRE, be alert for questions where a lawyer settles a case or waives a substantive right without client consent. Remember: the client controls settlements, and the lawyer must have express authority. However, the settlement may still be enforced if the client’s conduct gave the lawyer apparent authority.

Revision Tip

When reviewing practice questions, always identify whether the lawyer’s authority is actual (express or implied) or apparent. Focus on who made the decision and whether third parties were reasonably misled.

Summary

• The client controls objectives and key decisions; the lawyer controls means and tactics.
• Actual authority is based on client instructions; apparent authority is based on third-party perceptions.
• Settlements require express client consent, but may be enforced if apparent authority exists.
• Unauthorized lawyer actions can expose the lawyer to discipline and civil liability.

Key Point Checklist

This article has covered the following key knowledge points:

• Clients decide objectives; lawyers decide means, subject to consultation.
• Actual authority is express or implied from client instructions.
• Apparent authority arises from client conduct leading third parties to believe the lawyer is authorized.
• Settlements and waivers of substantive rights require express client consent.
• Unauthorized settlements may still bind the client if apparent authority is present.
• Lawyers acting outside their authority may face discipline and malpractice claims.

Key Terms and Concepts

• Actual Authority
• Apparent Authority
• Objectives of Representation
• Means of Representation
• Third-Party Reliance