Question: My wife and I had been involved in marital litigation for nearly two years when, through our lawyers, settlement talks began. Based on their conversations, my lawyer told me that the case was settled and my wife's lawyer would prepare an agreement for my signature. After reviewing the agreement, I refused to sign because it was not what I had anticipated and several material matters had been left out. At that point, my lawyer told me that he could not continue to represent me because I refused to sign what had been agreed to between him and my wife's lawyer.
Then my wife's lawyer went to court and sought enforcement of the agreement which, he said, had been made by him and my lawyer and attached all of the communications between them, many of which I had never seen before. My lawyer was subpoenaed to court by my wife's lawyer and testified that the case had been settled, that the document had been prepared, and that I backed out of the deal after the fact. I tried to explain to the court that my lawyer had never explained the terms to me, had never written me anything specific about the "deal," and that I had understood that the document prepared was a working draft for discussion. Despite what I said, the judge ruled I was bound by the agreement -- even though I had not signed it. How can my lawyer bind me to an agreement that I did not sign or agree to? How can I get out of this travesty?
Answer: Although lawyers have the general authority to bind clients to settlements, the facts surrounding each situation must be examined in light of the law of each state. In some, the agreement must be reduced to writing and placed on the court record. In others, letters between lawyers have been found to be settlements. And, in some instances, oral agreements between lawyers have been enforced.
Although hindsight is 20-20, you should have insisted before the fact that before any offer of settlement was made, you would be furnished with a copy for your review and signature. Good lawyers discuss the ramifications of a proposed settlement with their clients fully before even making or replying to an offer of settlement or discussing settlement. Because memory lapses may occur, any proposal should be placed in writing and provided to clients for review before submission. And to be doubly sure that there is no dispute about what was intended, preliminary offers should be labeled "draft" or "preliminary offer of settlement." Your situation points up why it is so very important for clients to be involved in the negotiation process and to demand communication from their lawyers.
Your options: Hire another lawyer and appeal the judge's ruling and exhaust your remedies in the courts before taking your lawyer to task for what appears to be a very poor way of doing business.
Question: My wife and I were involved in mediation and settlement negotiations before everything broke down and we began to litigate. On my behalf, my lawyer made written offers of what we considered to be a very fair deal -- which my wife promptly rejected. When my wife's lawyer brought the lawsuit against me, she attached a copy of my lawyer's offer of settlement -- even though my lawyer had told me that offers of settlement could not be used against me. How can I overcome the prejudice that this will have in the eyes of the court?
Answer: Because the courts favor settlement of matrimonial cases, offers of compromise are not admissible as evidence and should not be used for or against a party in court proceedings. To do otherwise would certainly chill the negotiation and settlement process. We believe that by attempting to use your offer of settlement as a "floor" for the court to consider in setting support and dividing property, your wife's lawyer is treading on very thin ice -- both legally and ethically. Your lawyer should not only make an appropriate motion before the court to expunge the offer, but also consider a report to your state bar association. The problem here is that once the damage has been done, we don't know how you can remove it from the memory of the judge who will eventually be hearing the case.
Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, tax, and elder law attorney. Both are based in Columbia, South Carolina.
Please send your questions by e-mail to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, S.C. 29211. Sorry, but due to volume, answers can only be provided in the column.
