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Law professors Stephen Gillers and Deborah Rhode weigh in on an ethical dilemma faced by a large-firm attorney. Q: I’m a lawyer in a 700-lawyer firm. We took on a challenge to the city’s homeless services as a pro bono matter. Our client is a respected organization that works for the homeless. We’re not charging, of course, but we could get a fee from the court if we prevail. After two years of tough battles, the city offered to meet six of the eight service and accommodation demands contained in our complaint. If we go to trial, we have at best a one-in-three chance of winning on all eight demands. Even if we did, it could take easily another three years to work through appeals. We could also lose entirely. We advised our client to grab the settlement and even offered to donate any of that fee we recover to the client. Yesterday the client’s board voted 9 to 5 to continue fighting. I think that’s nuts. What can we do? Can the firm fire the client? Gillers: I think you’re probably stuck where you are, Fed Up. The client calls the shots on some things, and settlement is one of them. ABA rule 1.16(b)(4) lets you seek permission from the court to withdraw if the client “insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” But I think this recourse must be used only in extreme cases, in order to avoid undue pressure on the client’s authority over settlement. The Restatement of Law Governing Lawyers says that a lawyer should not withdraw when a client rejects a settlement the lawyer supports unless “no reasonable person in the client’s position . . . would have declined the settlement.” You may consider the board’s decision nuts. I might consider it nuts, too. But I bet the board knows a lot more about the needs of the homeless and the importance of the two rejected demands than either of us does. By the way, you might have saved yourself some trouble by talking to the client about its settlement position at the outset. That might have smoked out any areas in which the firm and the client disagreed and affected your decision about whether to accept the matter. Rhode: No good deed goes unpunished. That, at any rate, is how law firms experience some pro bono cases in which clients seem to be out of touch with legal realities. The Model Rules of Professional Conduct on settlement authority were not crafted with an eye toward nonpaying clients who demand a fight to the death (or the Supreme Court’s denial of certiorari). In this case, Professor Gillers is right that the board may know more about the needs of the homeless than the lawyer does. But it may not know about the needs of other pro bono clients that won’t be met if the firm’s charitable resources are tied up in this litigation. The best way to prevent these problems is a candid conversation at the outset, not just about the client’s settlement aspirations, but also about the firm’s financial constraints. Model rule 1.16(b)(6) allows a lawyer to withdraw from a representation that will result in an “unreasonable financial burden on the lawyer,” and Model rule 1.2(c) allows a lawyer to limit the scope of representation if the limitation is “reasonable under the circumstances and the client gives informed consent.” For a case that may involve major pro bono commitments, lawyers and clients should start on the same page about what would make a financial burden “unreasonable,” or constitute a “reasonable” limitation on advocacy. Stephen Gillers is the Emily Kempin professor of law at New York University. Deborah Rhode is the Ernest W. McFarland professor of law at Stanford University. A version of this column first appeared in The American Lawyer, a sibling publication of Corporate Counsel.

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