Question: I am writing so you can let your readers know there is sometimes justice in the world – even without lawyers.

My husband and I were separated for nearly two years and in court for another year. Unknown to me, settlement talks began between the lawyers, and my lawyer refused to involve me. Without as much as asking my opinion, he told me that the case was settled and there would be an agreement for me to sign. Then it took three weeks before I got this supposed agreement in the mail – still with no explanation. I refused to sign it.

My lawyer became irate and told me that he wouldn't represent me any more because I wouldn’t sign. So he quit, and my husband’s attorney sued me to get the judge to make me sign this "agreement." I didn't get another lawyer because I couldn’t afford to, so I went to court myself. My husband's lawyer told the judge that he and my lawyer had made the agreement. My lawyer was subpoenaed by my husband and told the judge that he had settled the case, but that I backed out of the deal after the fact. I explained to the judge just what had happened, and showed him the paperwork indicating that my lawyer never explained the agreement to me. The judge believed me, chewed out my lawyer, and ruled in my favor. Sometimes, justice does prevail.

Answer: Good job. While it is generally correct that lawyers have the authority to bind their clients to settlements, the facts surrounding each situation must be examined in light of the law of each state. In some states, the rules require that the agreement must be in writing and placed on the court record. In others, letters between lawyers have been ruled to be settlements. And in some instances, oral agreements between lawyers have been enforced.

Anyone involved in marital litigation, for their own protection, should insist that before any offer of settlement is made, they be furnished with a copy for their review and signature – after everything has been thoroughly explained. Good lawyers discuss the ramifications of a proposed settlement fully with their clients before even making or replying to an offer of settlement, or discussing settlement. But because memory lapses may occur, all proposals should be placed in writing. And to be doubly sure that there is no dispute about what was intended, preliminary offers and agreements should be stamped "draft" or "preliminary offer of settlement."

Each offer should also state that if not accepted within a specific period of time, the offer will be withdrawn. While you were successful in court, your situation points up why it is so important for clients to be involved in the negotiation process and to demand communication from their lawyers.

Question: My husband and I were involved in litigation, then in mediation, and finally settlement negotiations before everything broke down and we went back to court. During negotiations, my lawyer made written proposals of what I considered to be a very fair way to get the case completed. My husband promptly rejected the proposal with no counteroffer. I had been told that offers could not be used against me, but my husband’s lawyer attached a copy of my lawyer's settlement offer to a court motion to cut my support. If I had known it would be used against me, I would not even have negotiated. How can I overcome the prejudice that this will cause in the court’s eyes.

Answer: Because courts favor settlements, offers of compromise are not admissible as evidence and should not be used for or against a party in any court proceeding. To do otherwise would “chill” the negotiation and settlement process. We believe that by using your offer of settlement as a "floor" for the court to consider in asking you’re your support be reduced, your husband’s lawyer is treading on very thin ice -- both legally and ethically. Since the judge isn't likely to see the document before a hearing, your lawyer will probably ask the court to seal the document, and then seek to get this very improper filing expunged. You should also get your lawyer’s view on reporting this to the state bar association.