My corporate client won't settle because holding the money earns investment income that beats the litigation risk. If I follow that instruction and keep litigating, am I violating the duty to expedite litigation?

Plain-English summary

The inquiring attorney defended a corporate client in both a workers' compensation action and a tort liability action, and had recommended settling both. The client declined, telling the attorney it did not wish to settle because the suggested settlement funds were earning enough investment income to justify the additional risk of proceeding with litigation. The attorney asked whether abiding by the client's decision not to settle, for that reason, would violate Rule 3.2.

The panel concluded it would not. Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the client's interests, and its commentary states that realizing financial or other benefit from otherwise improper delay is not a legitimate client interest. But the decision to settle, the panel explained, is an issue relating to the objectives of the representation and is therefore for the client to decide, and Rule 1.2 expressly requires the attorney to abide by the client's decision on settlement. On the facts, the client's litigation matters would proceed in due course, and there did not appear to be improper delays that would violate Rule 3.2. The panel therefore concluded that implementing the client's decision not to settle and proceeding with the litigation was required by Rule 1.2 and did not violate Rule 3.2.

Currency note

This opinion was issued in January 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.2 and 3.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Who decides whether to settle a case, the lawyer or the client?

A: The client. The opinion explained that the decision to settle relates to the objectives of the representation and that Rule 1.2 expressly requires the lawyer to abide by the client's decision whether to accept an offer of settlement.

Q: Does litigating on, rather than settling, violate the duty to expedite litigation?

A: Not on these facts. The opinion concluded that because the litigation would proceed in due course with no apparent improper delay, following the client's decision not to settle did not violate Rule 3.2.

Q: The client's reason was to keep earning investment income. Does that change the answer?

A: The opinion noted that Rule 3.2's commentary treats benefit from improper delay as illegitimate, but concluded that here the matters would proceed in due course without improper delay, so abiding by the client's decision was required by Rule 1.2 and did not violate Rule 3.2.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.2 (Model Rule 1.2) and 3.2 (Model Rule 3.2) as originally adopted. Rule 1.2(a) requires a lawyer to abide by the client's decisions concerning the objectives of the representation, including whether to accept a settlement offer. Rule 3.2 requires reasonable efforts to expedite litigation consistent with the client's interests; its commentary asks whether a competent lawyer acting in good faith would regard the course of action as having a substantial purpose other than delay, and states that realizing benefit from otherwise improper delay is not a legitimate client interest.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / RI RPC 1.2(a) (scope of representation; client's decision on settlement)
• Model Rule 3.2 / RI RPC 3.2 (expediting litigation)

See also

• RI EAP Op. 99-18: Insurer litigation guidelines and the lawyer's independent judgment
• RI EAP Op. 99-05: Two victims of the same abuser, no conflict

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2099-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                            RHODE ISLAND SUPREME COURT
                               ETHICS ADVISORY PANEL
                             Opinion No. 99-01, Request No. 752
                                  Issued January 14, 1999

Facts:

     The inquiring attorney has a corporate client for which he/she provides legal services in the

defense of both workers' compensation actions and tort liability actions. The attorney has
recommended to the client that it settle a pending workers' compensation case and also a pending tort
litigation. The client, however, has advised the inquiring attorney that it does not wish to settle the
matters because the suggested settlement funds are earning enough investment income to justify the
additional risk posed by proceeding with litigation.

Issue Presented:

     The inquiring attorney asks whether it is a violation of Rule 3.2 for him/her to abide by the

client's decision not to settle a pending matter for the reasons stated and to proceed with litigation.

Opinion:

    Pursuant to Rule 1.2 of the Rules of Professional Conduct a lawyer must abide by a client's

decision to settle a matter. To do so does not violate Rule 3.2 which otherwise requires a lawyer to
expedite litigation.

Reasoning:

     Rule 3.2 requires a lawyer to "make reasonable efforts to expedite litigation consistent with the

interests of the client." The official commentary to Rule 3.2 provides in pertinent part:

             The question is whether a competent lawyer acting in good faith would
             regard the course of action as having some substantial purpose other
             than delay. Realizing financial or other benefit from otherwise improper
             delay in litigation is not a legitimate interest of the client.

     The decision to settle pending litigation is an issue relating to the objectives of the representation

and is therefore a matter for the client to decide. See Rule 1.2. Rule 1.2 expressly requires an attorney
to abide by a client's decision respecting settlement of a matter. In relevant part, Rule 1.2 states:
Final 99-01
Page 2

    Rule 1.2. Scope of Representation. -

            (a) A lawyer shall abide by a client's decisions concerning the
            objectives of representation, subject to paragraphs (c), (d) and (e), and
            shall consult with the client as to the means by which they are to be
            pursued. A lawyer shall bide by a client's decision whether to accept
            an offer of settlement of a matter . . . .

    Based on the facts as presented, the client's litigation matters will proceed in due course. There

do not appear to be improper delays in the pending litigation which would violate Rule 3.2. The Panel
therefore concludes that to implement the client's decision not to settle and to proceed with the litigation
on the client's behalf is required by Rule 1.2 and is not a violation of Rule 3.2.