Fiduciary Role
Many qualified attorneys accept the fact that they have a fiduciary duty to their client in the settlement process. Rule 2.1 of the ABA's Model Rules of Professional Conduct affirms the attorney's duty to his client beyond the limited legal scope of the law and allows great latitude in the areas of advice he or she may offer a client. The Rule states that "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."
At the very foundation of the attorney-client relationship, an attorney must comply with Rule 1.4 (b) " a lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representations." This would involve communication of all settlement offers and options that would best serve their client, including receiving part or all of their settlement recovery in the form of a guaranteed, tax-exempt annuity.
Unknown to many plaintiff attorneys is the fact that they may be held legally liable for not presenting a structured settlement offer as part of the overall settlement - particularly when it is reasonably certain than it would be in their client's best interest. As such, it may be wise to review the following well known legal malpractice case, among others, as part of your due diligence:
Grillo v Pettiete et al. Cause No.96-145090-92 and Grillo v Henry Cause 96-167943-96, 96th District Court, Tarrant County, TX.
Due Diligence for structured settlements is not difficult and can result in great advantages to the client. To view a summary checklist of issues to consider, please refer to the Top Ten list here.