The Foundational Principle
The bedrock rule of legal practice is that the client is the principal, and the lawyer is the agent. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation.
This means a lawyer’s authority is derived from and constrained by the client’s instructions. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation, but the lawyer shall abide by the client’s decision whether to settle a matter.
There is an important distinction between objectives and means: the client controls the objectives (whether to sue, whether to settle, what plea to enter), while the lawyer has discretion over tactical and procedural means to achieve those objectives. For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent, but decisions such as whether to settle a civil matter must be made by the client.
How Lawyers Demonstrate Proper Instructions
A. Written Engagement/Retainer Agreement
The single most important document that defines the attorney-client relationship is the retainer agreement or engagement letter. Having a written engagement agreement can protect both lawyer and client it makes the relationship clear to the client, helps the client value and take the lawyer’s work seriously, and memorializes the agreement and scope of work in the event any dispute arises later.
A well-drafted retainer agreement that properly identifies the obligations the lawyer agrees to undertake can prevent unrealistic expectations. It is important to capture the client’s understanding through a written acknowledgment signed by the client.
B. Written Authorizations for Key Steps
For steps that go beyond general representation, particularly filing suit, entering settlement, or dismissing a claim, lawyers should obtain specific written authority from the client. Without the express consent of a client, an attorney cannot enter into a settlement agreement, endorse a client’s name on a check, or dismiss a cause of action. The attorney is severely limited in the substantive acts they may take on behalf of a client.
C. Contemporaneous File Notes and Communication Records
A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests. Keeping dated attendance notes, emails, and correspondence confirming client instructions creates a contemporaneous paper trail.
D. Confirmatory Letters
After receiving oral instructions, especially for significant steps like filing suit, best practice is to immediately send the client a letter confirming: the instructions received, the action to be taken, and any risks explained. The client’s failure to object to a confirmatory letter can later be relied upon as evidence of consent.
E. Ongoing Communication During Litigation
If Rules of Professional Conduct require that a particular decision about the representation be made by the client, the lawyer must promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement must promptly inform the client of its substance.
III. Effect of a Suit Filed Without the Client’s Consent
This is one of the most serious consequences of acting without authority.
A. Acts Beyond Authority Are Voidable or Void
Courts have consistently held that an attorney who takes major steps without client authority acts beyond the scope of representation. An attorney’s unauthorized disposition of clients’ substantive rights is invalid and a judgment based thereon is therefore void. Dismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority which, on proper proof, may be vacated at any time.
B. Unauthorized Actions Do Not Bind the Client
The attorney is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action, but he may not impair the client’s substantial rights or the cause of action itself. An attorney may not, by virtue of his general authority over the conduct of the action, agree to the entry of a default judgment, a summary judgment against his client, or compromise his client’s claim.
IV. Protecting Yourself against Clients Who Later Deny Giving Instructions
This is a practical and serious risk. The following are the key protective measures:
1. Signed Retainer Agreement with a Clear Scope
A well-written engagement letter can mean the difference between a dismissal of a grievance complaint your former client files against you and a finding of probable cause, or the difference between summary judgment and the court finding a triable issue of fact in the malpractice action. It confirms the exact nature of the agreement reached at the beginning of the relationship concerning the fees and the services to be provided, in the event of a subsequent dispute, you don’t have to rely on memory or resort to calling the former client a liar.
2. Written Specific Instructions Before Filing Suit
Never file suit on a verbal instruction alone. Have the client sign a written authority to institute proceedings, clearly identifying the parties, the claim, and the relief sought.
3. Confirmatory Emails and Letters
After every significant instruction, especially to file, settle, discontinue, or accept terms, send an email or letter confirming what was discussed and what action you will take. Keep all replies (or record that no objection was raised).
4. File Notes Contemporaneously
Detailed attendance notes made at the time of the meeting, not reconstructed later, carry evidential weight. Note the date, time, who was present, what instructions were given, and what advice was rendered.
5. Payment of Retainer
A comprehensive engagement letter is one of the best means available to minimize or even avoid the financial and reputational risks of disputes with clients. Requiring the client to pay a retainer before proceeding is also evidence of their active participation in the mandate.
6. Retain All Communications
If the client does not request the file, the lawyer must retain it for at least five years. It is advisable to keep a copy of the file regardless of whether the client requests theirs, for the duration of the firm’s file retention period. In many jurisdictions, statutory or ethical rules set minimum file retention periods.
7. Update Instructions for Each Major Step
Every retainer agreement should contain language that a new agreement will be required for any matters falling outside the scope of the original agreement. An attorney should be careful not to exceed the scope of the original engagement agreement without making the appropriate adjustments or supplementing it with a new agreement.
8. Non-Engagement and Disengagement Letters
When you decline a representation or when the matter concludes, confirm this in writing. Disengagement or termination with the client should be memorialized in most circumstances by a letter stating that the legal representation has ended. This protects against later claims that you were still acting without updated authority.
Conclusion
The requirement that advocates act only under client instructions is one of the foundational principles of legal practice. It protects litigants from unauthorized proceedings while preserving public confidence in the legal profession.
For advocates, the lesson is equally practical and professional: undocumented instructions are dangerous instructions. Proper retainers, signed pleadings, written confirmations, attendance notes, and preserved communication are not merely administrative formalities; they are essential safeguards against future disputes.
In modern legal practice, careful documentation is often the difference between a protected advocate and a vulnerable one.
