Inadequate Disclosures to Clients: Malpractice Pitfall
| Publication year | 1980 |
| Pages | 2378 |
| Citation | Vol. 9 No. 11 Pg. 2378 |
1980, November, Pg. 2378. Inadequate Disclosures to Clients: Malpractice Pitfall
2378
The defense attorney offers a reasonable settlement in a landmark case. A trial of the case could create publicity favorable to the plaintiff attorney's career, but a trial could easily result in a defense verdict. What information is required for adequate disclosure to the client in order for the client to decide whether or not to accept the settlement?
In another situation, the plaintiff's lawyer pressures his client to accept a settlement offer. The case is again one of questionable liability; the settlement offer is reasonable, but a verdict could result in a much higher award. Plaintiff's lawyer has an ego that does not allow for defense verdicts; possible defense verdict cases are always settled. What information should this client be given and what remedies, if any, does he have if he does not get the information?
In yet another situation, the plaintiff's lawyer tries almost all his cases feeling that at least one in ten will result in a big verdict. The other nine are defense verdicts. The lawyer says he gives every case his all and that is why he tries them. His reputation is that he just wants the glory of the big verdicts. What information should he give his individual clients concerning proffered settlements?
Under Colorado law, a settlement obtained as a result of a mutual mistake of material fact may be set aside as ineffective.(fn1) This rule is intended to afford relief in situations where "it is established that the injured party released his claims under a mistaken or false impression that he was fully informed as to the nature of his injuries."(fn2) Inadequate disclosure by an attorney regarding the legal merits of whether to settle falls within the limits of mere unilateral mistake. Unilateral mistakes of fact are never grounds for repudiation of a settlement agreement.(fn3)
What remedy does the client have when he enters into a settlement agreement as a result of inadequate disclosure of all the relevant facts by his lawyer? If he cannot rescind the settlement agreement as the established law suggests, does he have an alternative remedy in bringing a cause of action against his own lawyer? The cause of action would be based upon a legal malpractice theory...
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