Although the California State Bar’s Rules of Professional Conduct require the communication of all written settlement offers to a client, it’s safe to say there are regulars in the workers’ compensation community who routinely ignore that rule.

John P. Kamin

The rule in question is Rule 1.4.1 Communication of Settlement Offers, and it can be found here. It states that:

• (a) A lawyer shall promptly communicate to the lawyer’s client:
  • (1) All terms and conditions of a proposed plea bargain or other dispositive offer made to the client in a criminal matter.
  • (2) All amounts, terms and conditions of any written* offer of settlement made to the client in all other matters.

The “comment” at the bottom of the rule states that oral offers of settlement in civil matters are also to be communicated if they are “significant developments” under Rule 1.4.

If the number of the rule seems a little off from what you remember, that’s because it has been on the books for a long time and was previously known as Rule 3-510 until about 2018 or so.

So, why is it that as a defense attorney, I’ve experienced:

• Some applicants’ attorneys plainly never conveying written settlement offers?
• Hearing representatives swearing they don’t have to communicate settlement offers unless they think it’s important?

The short answer is, they don’t think it is worth their time to convey settlement offers. And with that, let’s look back at a real-life example. (Per "Law & Order" and "Dragnet," the story you are about to read is true. The names have been changed to protect the innocent.)

The story

Once upon a time, there was an ex-con named Jack, who had a few messy priors for armed robbery and more names than he could count. He had served his debt to society and bounced around from job to job, and eventually found one he stuck at for a few years before the relationship turned rocky. You can guess the rest of the story: He was fired for cause and filed a post-termination CT claim.

The QME found injury and gave 4% PD, which is worth a few grand. My settlement offers appeared to be going nowhere, and I was told that the applicant wanted $100,000.

A few trial dates came, and later, Jack fired the applicants' attorney. At the next trial date, Jack showed up, and I mentioned my prior settlement offers. He told me the following:

“They never told me about any of your settlement offers,” he said. Now, looking a little offended, he looked me right in the eye and said, “Hey, I’m not stupid. I know my case isn’t worth $100,000. I didn’t ask for that. They made that up.”

That day, we were able to quickly settle and go on our merry way.

So why did this case take three years to settle from its inception? Why did this case settle almost a full year from that QME report?

Because the written settlement offers weren’t being conveyed.

Now, let’s say Jack was lying. OK, so then why have I had others swear to me that they don’t have to convey settlement offers unless they think highly of them?

Settlement offers

To be clear, this is not a problem with the entire applicants' bar. For instance, when a friend needs a referral for an attorney, I will share the name or names of attorneys who listen to their clients and settle when the client wants to settle. These attorneys are still aggressive and razor-sharp, but they settle cases when their clients want to settle.

On the defense side, smart attorneys are good about relaying settlement demands made by applicants’ attorneys. Why? Because it tells our clients where the attorney is, and frankly, that helps us get settlement authority faster.

So send us your demands all day. We’re happy to convey them.

Keep plugging away

If you find yourself in a situation where your settlement offers are not being conveyed, keep trying to convey them. Eventually, your offer will probably break through.

And if not, it’s possible that the applicant will eventually fire the attorney, and you’ll wind up having a heart-to-heart with him about settlement.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.