Connecticut Business Litigation Blog : Connecticut Business Lawyer & Attorney : N. Kane Bennett : Aeton Law Partners LLP : Hartford, Middletown, Glastonbury

The answer is -   yes, under the right set of facts.  In Connecticut, attorneys must abide by a client's decision to settle a case.  Additionally, an attorney has to consult with a client and secure consent to accept or make a settlement offer.  Seems straightfoward, right? 

However, what happens if an attorney reasonably believes he has consent, but the client later disagrees?  Or, what if the client does give consent, but later changes her mind?  Or, how about a situation where it appears to the opposing party that the client's attorney had authority to settle based on conduct of the client.  Does it matter whether there really was express authority given to the attorney to settle?

In a recently released decision,Ackerman v. Sobol Family Partnership, et al, the Connecticut Supreme Court addressed these very issues.  In the case, the Supreme Court upheld a trial court judgment in favor of a group of defendants that sought to enforce a settlement agreement.  The case involved a history of negotiations between well known attorneys for the two sides, including a failed mediation and a few months of verbal and written exchanges on settlement terms. 

The underlying case involved a dispute concerning "management and oversight of a family partnership and various family trusts."  Shortly before trial was scheduled to start, the defendants believed that a global settlement was reached for 1.1 million dollars based on an agreement with the plaintiffs' attorney.  The plaintiffs disagreed and claimed that their attorney did not have authority to bind the plaintiffs to the settlement.  The defendants then filed a motion to enforce the settlement agreement.  Judge Eveleigh held a hearing on the motion, made factual findings on the record, and ultimately entered judgment in the case based on the settlement agreement.  

On appeal, the Supreme Court gave deference to Judge Eveleigh's findings and upheld his decision to enforce the settlement agreement despite one of the plaintiffs stating her attorney had no authority to settle the case.    The Court's decision was based on the actual or apparent authority that the plaintiffs' attorney had to settle the case coupled with the defendants' reasonable belief that the attorney had the authority. 

The following factors, if present, can result in an attorney binding a client to an enforceable settlement agreement whether the client actually agreed or not:

• Terms of the settlement are clear, certain, and unambiguous
• Offer and acceptance of the terms
• Attorney had actual or apparent authority to agree to the terms
• If apparent authority, then opposing party must have good faith belief that attorney had authority

On the issue of apparent authority, the basic question is whether it reasonably appeared to the opposing party that the attorney had authority to settle regardless of whether there was express authority.  The relevant inquiry for the court is the conduct of the client, not the attorney.  In other words, the client can engage in conduct that permits others to believe the client's attorney had authority to settle.  For example, a court may find apparent authority existed if the client through her own actions held the attorney out as "possessing sufficient authority" or knowingly permitted the attorney to act with such authority.   If it was reasonable for the opposing party to believe there was authority to settle, a binding agreement can exist.  In these circumstances, as in the Sobol case, the court can enforce a settlement agreement even if the client later claims that there was no actual authority for the attorney to settle the case.  

The take away here is that a settlement agreement negotiated between attorneys can, under some circumstances,  bind a client to the agreement in court even if a client did not intend to agree or the client later changes her mind.  If a client wants to have final approval over every aspect of a settlement agreement, it should be clear to not only the client's attorney, but also communicated to the opposing party as well. 

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Lawyers are all over Facebook and LinkedIn.  What are they doing?  If they are not marketing or social networking, they are fishing or "mining" for information about individuals and businesses.  They are looking for this information to help with lawsuits.  The business and employment trends involving social media are growing and as a result we will continue to see a variety of different lawsuits and legal issues involving some aspect of Facebook, LinkedIn, Twitter, MySpace and YouTube.  For example, read the posts yesterday by Dan Schwartz's Employment Law Blog detailing how privacy settings on Facebook permit easier production in electronic discovery and how facebook wall postings might be unavailable in discovery and deemed private. 

One of the issues lawyers will have to address when mining for data on Facebook and other sites is how to get the information.  Do you seek the material in discovery and possibly risk a judge deeming the information unavailable as private or irrelevant?  Do you just limit your search to what is publicly available?  Better yet, what about having an investigator try to "friend" your target so you can get access to the information that is not available to public searches?   If you are concerned about the ethics of this type of searching, you good instincts. 

Lawyers fishing on Facebook would be well advised to read through a few ethical opinions on the issue. Recently, the New York Bar Association issued an opinion related to ethical concerns for lawyers "fishing" for information and evidence on Facebook and LinkedIn.  The verdict?  Relying in part on a 2009 Pennsylvania Bar Association opinion, it was deemed ethical for lawyers to search for this information from public pages.  Seeking to "friend" for improper purposes, however, is more problematic and may land a lawyer in ethical trouble.  Specifically, if deception was used (by either the lawyer or a third party directed by the lawyer) to gain access as a "friend," it likely would violate the rules of professional conduct. 

Clearly, LinkedIn and Facebook are treasure troves for litigation attorneys.  However, it is a good idea to be cautious about how you access any information from these sites, especially if the information is not generally available from public searches. 

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The tragic suicide of Rutgers University student, Tyler Clementi, shows the potential devastating impacts arising from misuse of the Internet and social media sites such as YouTube, Facebook, and Twitter.  This incident also serves as a reminder of the rapid sea change that technology brings and how our laws struggle to keep pace especially when it comes to new forms of media and the Internet.  I have seen two trends develop as it relates to lawsuits and social networking litigation. Both of these trends will continue. 

The first trend concerns the potential problems and risks to business owners over social media.  These issue have been well documented for over a year now.  Some of these issues include privacy rights, defamation, trade secrets, non-competition agreements, electronic monitoring, evidentiary use, and concerns over social media policies in the workplace. 

The second trend that has developed is the unfortunate increase and rise in cyber bullying, harassment, and invasion of privacy from users posting content on Blogs, Facebook, MySpace, Twitter, and YouTube.  The sad fact is that this often involves school age children as victims of cyber attacks or as users who do not fully understand the significance and devastation that might result from posting content online to the entire world.

As another glaring example, Anderson Cooper of CNN reported just last night on the disturbing story of Chris Armstrong, an openly gay student at the University of Michigan.  The story detailed how a Michigan Assistant Attorney General, Andrew Shrivell, was outright harassing and stalking Mr. Armstrong both in person and on a blog.   Mr. Shrivell's conduct was revolting and disturbing for anyone let alone a law enforcement official.   His actions are an example of someone running wild on the Internet with harassment.

Individuals facing harassment or bullying over the Internet often feel as if there is nothing that can be done to stop the conduct.  For example, as of last night, the Michigan Attorney General had done nothing to discipline Shrivell for his conduct based on purported concerns for "First Amendment" rights.  Although the available laws for bringing a lawsuit for improper use of the Internet continue to evolve, an attorney can help a victim of Internet or online harassment.  In short, something can be done.  Some of the legal theories available for a civil lawsuit include defamation, negligent misrepresentation, invasion of privacy, stalking statutes, and infliction of emotional distress.  

The explosive growth of use of social media is not going to end. Instead, these trends will continue to dominate and grow.   As use and misuse of social media and the Internet continues, litigation attorneys would be well served to stay on top of the evolving legal issues.  Businesses and individuals will continue to need legal representation  to address these growing trends.

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