One of the more intriguing panel discussions scheduled later this week during the Society of Settlement Planners’ (SSP) 2021 Annual Conference will feature Paul Isaac, Jeremy Babener, Jack Meligan and Jason Lazarus in a Breakout Session titled: “Adding Value: Protecting the Attorney’s Practice.”
Anticipating this panel of settlement planning experts, we thought the perspective of a structured settlement provider might add some “extra value.”
Therefore, we offer the following thoughts to preview the SSP panel and to highlight issues related specifically to the role and responsibilities of plaintiff attorneys in structured settlements. This article includes references to both the "American Bar Association Model Rules of Professional Conduct" (ABA Model Rules) and to the recently updated legal textbook “Structured Settlements and Periodic Payment Judgments” (the Book).
For settlement planners and structured settlement professionals, as well as for plaintiff attorneys themselves, “Protecting the Attorney’s Practice” should begin with this caveat: personal injury settlement planning and negotiation require different subject matter expertise than personal injury litigation.
Attorneys who devote their lives to personal injury trial practice generally don’t have the time or interest to become estate planners, trust advisors, financial planners and experts at a range of issues that arise from structured settlements and may be required in settlement planning.
ABA Model Rules
To guide a plaintiff attorney through this potential legal minefield, the ABA Model Rules address a number of issues which are applicable to a plaintiff attorney’s role and responsibilities toward his client(s) as they relate to structured settlement and settlement planning issues.
To begin with, ABA Model Rule 1.1 provides: “A lawyer shall provide competent representation to a client” and adds “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Book, in Chapter 5, references ethical opinions that make clear that where “[a]n attorney who lacks or cannot reasonably obtain that competence is ethically required to retain an expert consultant who does have such competence.” Ariz. Ethics Op. 05-04
Other relevant ABA Model Rules and Ethics Opinions (as cited and discussed in Chapter 5 of The Book) include:
- Rule 1.2: Attorneys are to “abide by the client’s decisions concerning the objectives of the representation” and to “consult with the client as to the means by which they are to be pursued.”
- Rule 1.3: Attorneys must be diligent regarding matters that can be adversely affected by the passage of time, a subject inevitably present in any structured settlement.
- Rule 1.4: Attorneys must communicate with clients reasonably to explain matters so that the clients can make informed decisions.
- Rule 1.14: “When minors or clients with diminished capacity are involved, an attorney “may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”
- Rule 1.16 with reference to Rules 1.2(c), 6.5 and 1.3: “Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. It is a critical point for plaintiff’s attorneys, therefore, to specify clearly with their clients the attorney’s agreed role, including when the engagement ends.
- Connecticut Informal Ethics Op.in. 89-10 (1989): If an attorney knows that a client needs financial services, the attorney has a duty to refer the client to appropriate resources or otherwise ensure that the client is informed that this is something the client ought to do. Also referencing: Ohio Supreme Court Board of Commissioners on Grievances and Discipline, Op.in. 2000-1 (Feb. 11, 2000) and Utah Ethics Op.135 (1993).
There is also case law, of course, addressing plaintiff attorney liability. The most significant case, arguably, is Grillo, which Independent Life revisited in this 2020 article and which The Book analyzes in much greater depth in its Chapter 5 devoted to plaintiff attorney issues. But there is also the Standish case (again see Chapter 5) and the Mraz case - each of which provides important educational lessons.
What are those lessons? In summary:
As structured settlements and settlement planning have become increasingly complex, personal injury attorneys now require the services of other settlement planning professionals. Regardless of case complexity, however, plaintiff attorneys must at least continue to perform the following essential settlement planning roles:
- Recognizing settlement planning issues which impact their clients;
- Recommending appropriate settlement planning professional resources to their clients; and
- Retaining ultimate responsibility for effectuating settlements.
A broad range of professionals are now available to provide settlement planning related services to plaintiffs and their attorneys. These professionals include structured settlement consultants, life care planners, economists, tax attorneys, special needs attorneys, Medicare set-aside professionals, IRC Section 468B counsel, financial planners, registered investment advisors and other financial professionals.
Plaintiff attorneys should develop their own best practices and professional networks - guided by the ABA Model Rules as well as the Book and other educational resources including those available on Independent Life’s website and the upcoming SSP virtual conference. In addition, structured settlement and settlement planning professionals can also add value by helping to educate plaintiff attorneys about how to protect their own practices.