It is the ethical obligation of an attorney to notify his or her clients if the other side makes a settlement offer, even if the attorney does not believe that taking the offer is in the client’s best interests. But what happens if an attorney fails to do this?
That is exactly what happened in the case of Karen Oliver. Oliver suffered a heart attack after an emergency department clinician failed to properly read her ECG. After she recovered, Oliver and her husband hired a plaintiff’s attorney and sued the physician. Oliver’s attorney was enthusiastic about their chances of success, and the case proceeded to trial. During the trial, the physician’s defense attorney made a settlement offer of $200,000, which he raised to $300,000 once the jury began its deliberations. Oliver was inclined to take the offer, but her attorney advised her that he thought they could do better. Finally, the physician’s attorney offered $400,000 just minutes before the jury returned with their verdict. According to Oliver, her attorney did not convey the offer, and as the jury was filing into the courtroom he merely mentioned that the other side had offered $400,000 to settle, which he had rejected. At that point, the jury was already announcing their verdict against the physician and awarded Oliver only about $75,000, far less than the settlement offer.
Oliver turned around and sued her attorney for legal malpractice. The case went to trial, during which the attorney testified that he had conveyed the offer to Oliver, but that he had recommended against taking it. Oliver testified that the attorney had never conveyed the offer to her, and that she was never given an opportunity to take it. The jury ultimately found for Oliver, and awarded her $200,000 – the amount agreed upon at a pretrial stipulation as to damages.