In the course of a representation, lawyers are often looked to—by opposing parties, by courts or even by the media—to represent their clients and provide their clients’ positions on legal and factual issues. Because lawyers generally act as their clients’ agents, their statements can be legally binding on clients.

This issue recently received press when it was reported that former President Donald Trump’s lawyers did not request a jury trial on his behalf, which is an act that binds the former president who cannot now take a different approach.

Lawyers are understood to wield significant authority on a client’s behalf to take positions on behalf of that client or to convey the client’s legal positions. The adversarial system is also based on the fact that lawyers are generally understood to speak for their clients, in informal conferences or discussions or even before a court, unless specified otherwise.

But does this general presumption create risk? Here are some tips and considerations when considering the lawyer’s role as agent on behalf of a client.

What a Lawyer Says or Does on Behalf of a Client May Be Binding

It could be argued that the primary purpose of a legal representation is for the lawyer to speak on behalf of the client, as if the client were doing it for himself or herself.

There are many types of situations where this issue could arise. For example, courts have discretion in deciding what constitutes a judicial admission and thus, what will bind the client. But lawyers are often called upon to present their client’s position on a specific legal issue or factual matter.

Agency can also come up in the context of discovery. During a hearing on discovery issues, it is not uncommon for a judge to ask a lawyer about the client’s documents: where are they stored? How many are there? Will the client agree to make a production?

If a lawyer represents to a judge, for example, that the client does not possess documents and that turns out not to be true, the client may be sanctioned for the lawyer’s representations. Additionally, if a lawyer agrees to proposed settlement terms, that agreement may bind their client, even if the client did not intend to or does not want to accept the settlement.

In these examples, the client may be bound by the lawyer’s representations or actions, even if the lawyer spoke incorrectly or if the client did not expressly approve the approach.

Tips for Lawyers Whose Actions or Statements May Be Binding

Accordingly, lawyers can take steps to avoid committing a client to a position that the client may not want. Preparing for a court appearance—by reviewing the record and communicating with the client—can help minimize the risk of accidental misstatements.

Maintaining this level of open communication with the client allows the client to participate in decision-making, allowing the client to (even tacitly) approve of statements made by the lawyer that may become binding or cause an adverse effect.

When appearing in court, if a lawyer does not know the answer to a question being asked, the right course may be to simply say so. Telling a court that the lawyer will need to investigate the issue further may be preferable to the risk of binding the client to an untrue or inaccurate statement.

It can be a difficult position for a lawyer to have to tell a judge that a statement the lawyer made was misinformed or incorrect. Even if a judge ultimately does not treat the lawyer’s statement as a binding “admission,” this situation could erode the lawyer’s standing with the judge. Doing the legwork ahead of time to investigate issues and communicate with the client can help avoid this situation.

What About Mere Opinions or Puffery?

Statements of puffery and personal opinions made by a lawyer—perhaps, about likelihood of success, or strength of the evidence—are generally not considered binding on their clients, largely because it may be unreasonable to rely on these kinds of statements.

However, even if a lawyer engages in this type of puffery that is not binding on a client, this can negatively impact the lawyer’s reputation if the lawyer has to retract previous statements. Opposing counsel may be less likely to reach informal understandings or agreements with that lawyer if there is a suspicion that the lawyer cannot be relied upon.

And, in extreme situations, a lawyer stating personal opinions in an inflammatory way could constitute a breach of the duty of candor or fairness to opposing parties.

Considerations When Facing Adverse Results

Sometimes a lawyer may make a representation on the client’s behalf, only to then realize that the client cannot or will not be able to follow through. If it is not possible to backtrack or correct the statement, the lawyer may have to have a difficult conversation with their client to explain the binding nature of the lawyer’s actions or statements.

Lawyers are understood to wield significant authority to act on behalf of their clients. Communicating with the client and investigating relevant facts can assist lawyers in this position to help make sure they are making informed decisions. By being aware of these risks, lawyers can take steps to minimize the risk of taking a legal position that binds their client negatively.