The Settlement Offer During Trial and the Former Employer Connection
You are a certified paralegal at a two-attorney firm. Attorney Brooks is in a three-day jury trial and has asked you to hold all calls except emergencies. At 10:15 a.m., opposing counsel in a personal-injury case, Ms. Nguyen, calls. She says her client will pay $40,000 to settle the case, which has a $75,000 demand, if your client accepts by Friday. She also asks for a 30-day extension to respond to interrogatories that were served 25 days ago. Ten minutes later, your client calls and asks, 'Should I take the $40,000?' and 'Do I really have to answer those interrogatories?' You also know that two years ago you worked as a secretary at Ms. Nguyen's firm and occasionally saw files for this same grocery-store defendant, though you do not recall this case. Attorney Brooks cannot be reached.
1. What may you say to Ms. Nguyen, and what may you not say?
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You may identify yourself, confirm that Attorney Brooks is in trial, write down the offer and the extension request, and say you will relay them. You may not accept or reject the $40,000 offer, negotiate a counteroffer, or tell Ms. Nguyen what your client will do. Settlement authority belongs to the client and attorney. On the discovery extension, do not grant it unless firm policy or Attorney Brooks has pre-authorized you to agree to scheduling extensions; even then, confirm the new date in writing and check the scheduling order. A safe response is: 'I will pass the settlement offer and the extension request to Attorney Brooks and confirm back today.' Do not disclose the client's financial situation, trial strategy, or the fact that the attorney is unavailable beyond what is necessary. Keep a contemporaneous note of the time, the offer, and the exact words used.
2. How should you respond to the client's two questions?
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You cannot answer either question as legal advice. 'Should I take it?' calls for a judgment about settlement value, risk, and the client's goals; that is the attorney's role. You may say: 'I cannot advise you on the settlement, but I will make sure Attorney Brooks calls you as soon as the trial recesses. I can schedule a call for 5:15 p.m.' For the interrogatories, do not say 'you do not have to answer' or 'you must answer.' You may explain the factual deadline, that the responses are being prepared, and that the attorney will address objections. If the client is anxious, offer to send a written list of her questions to the attorney. Document the call and the client's instructions. If the client insists on a decision, repeat that the attorney must advise and offer to page the attorney through the court clerk or firm emergency contact.
3. Does your prior employment at Ms. Nguyen's firm create a conflict? What should you do?
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Your prior employment does not automatically disqualify the firm, but it creates a confidential-information risk. Nonlawyer employees are not treated exactly like lawyers under imputed-conflict rules, but they still owe confidentiality to former employers and must not use or disclose information relating to the grocery-store defendant. Report the prior employment to Attorney Brooks immediately. The firm should screen you from the case if you had access to relevant files, and document the screen: no access to the file, no discussions, no participation. If you actually worked on this case or saw confidential strategy, the firm may need to withdraw or obtain opposing counsel's informed consent. Do not conceal the connection; opposing counsel may recognize your name. Because you do not recall the file, say that precisely rather than denying any exposure.