OPINION 330
December 1966

POWER OF ATTORNEY IN PERSONAL INJURY CASES DUTY OF FULL DISCLOSURE CONTROL OF LITIGATION CONFLICT OF INTEREST. An attorney may not ethically take from his client in a personal injury case a power of attorney which vests in him absolute control of the case.

Canons 6, 8.

Question

May an attorney ethically use the following power of attorney in a personal injury case?

THE STATE OF TEXAS

COUNTY OF__________________

"Know all men by these presents, that I, of said State and County, have made, constituted and appointed, and by these present do make, constitute and appoint_____________, of______________ County, Texas, my true and lawful attorney, for me and in my name, place anal stead to in my name carry on and conduct to final consummation or compromise my claim against and all claims, demands or damages therein claimed or mentioned, in such manner and on such terms as to my said attorney may seem expedient; also to receive and receipt for all money in any manner accruing from or out of the same giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, hereby ratifying and confirming whatsoever my said attorney shall and may do by virtue hereof in the premises.

"In witness whereof I have hereunto set my hand this _________day of_____________, 1966.

"Before me, the undersigned authority, on this day, personally appeared_____________, known to me to be the person(s) whose name(s) is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed.

"Given under my hand and seal of office this________day of_________, 19____.

"_________________________________Notary Public in and for

_____________________County, Texas"

 

Opinion

Two members of the Committee are of the opinion that use of the above power of attorney in personal injury cases does not per se violate any of the canons although ethical violations would be involved if the attorney procured such power through misrepresentation or concealment or if the power were used by the attorney to make a settlement disadvantageous to his client. The majority of the members feel, however, that use of the power of attorney in question in personal injury cases should be prohibited. Under Canon 6 an attorney is obligated to advise his client as to any conflicts of interest which might affect his initial employment or his continued employment. Under Canon 8 he is cautioned to obtain full knowledge of his client's case before advising thereon and he is bound to give candid opinions so that the client may exercise his judgment as to the merits of his case and the disposition thereof. While the attorney is given wide discretion of litigation and in determining his ultimate position for example see Canons 15, 21, 27, 28 and 38 we believe it is implicit that ultimate decision upon the disposition of a case is reserved to the client. Therefore, it is unethical for an attorney to take from his client a power of attorney which vests in him absolute and unrestricted power of disposition.

Personal injury cases are customarily handled upon a contingent fee basis whereby the attorney essentially becomes a party in interest. Thus there always exists a potential conflict between the attorney and his client as to whether the case should be settled or tried. It is particularly appropriate, therefore, that the client be fully advised and afforded a full opportunity to decide upon the disposition of his case. The power of attorney in question would not safeguard these minimum requirements and its use is unethical. (6- 2.)