Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship

Abstract:     
Many are the court opinions stating that attorneys are agents of their clients. Traditional agency law allows principals to be responsible for actually and apparently authorized acts of an agent. Thus, one would expect courts to hold client principals responsible for authorized acts of agent attorneys. This article illustrates that some courts have exhibited significant reluctance to so hold, however. In the context of liability for torts such as abuse of process committed by attorney agents, some courts do not recognize traditional agency bases of client liability. Also, in the context of settlement, many courts do not apply traditional agency law in a traditional manner. Finally, in the context of waiver of the attorney-client privilege, some courts do not apply traditional agency principles. In each of these situations the courts deviate from traditional law to protect the client principal from liability that might otherwise occur as a result of the agency relationship. Courts appear troubled by viewing the relationship of lawyers and clients as a run-of-the-mill agency relationship. At the very least courts appear reluctant, in a paternalistic or maternalistic way, to hold a client responsible for an attorney's actions. This article concludes that such additional protection for clients is unnecessary in today's world of empowered clients. While there is no doubt that the relationship of attorney and client is a unique agency relationship, this relationship requires no special rules; the client neither deserves nor requires to be treated differently. Such a stance is more appropriate in today's environment in which user's of legal services are, in general, more sophisticated about the services provided by attorneys, and in many situations, intimately involved in the decisions made regarding the legal representation.

Keywords: Attorney Professional Responsibility, Lawyer-Client Relationship, Agency

JEL Classifications: K1, K4

Accepted Paper Series