Legal Memorandum: Authority of Attorneys in a Case

Issue: In Alabama, whether Rule 60(b) relief is available to a petitioner on the grounds that he was not present for a hearing at which a former counsel withdrew his objection to in personam jurisdiction.

Under Alabama law, “An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.” Ala. Code § 34-3-21 (2,000).  As the Alabama Supreme Court recognized long ago, this provision empowers attorneys to “settle by agreement or waiver any and all questions” that arise in the normal course of litigation.  Senn v. Joseph, 106 Ala. 454, 457, 17 So. 543, 544 (1894).  

The decision to contest jurisdiction, or waive a possible objection, is the sort of legal judgment attorneys routinely make without consulting a client.  See Marcy Strauss, “Toward A Revised Model Of Attorney-Client Relationship: The Argument For Autonomy,” 65 N.C.L. Rev. 315, 318 (1987) (“The traditional allocation of decision making authority is one in which the client decides the ‘ends’ of the lawsuit while the attorney controls the ‘means.'”)

Neither Alabama, nor any other jurisdiction, requires an attorney to consult with a client before asserting or waiving a defense of lack of in personam jurisdiction.  This affirmative defense may or may not be worth pursuing in a given case.   Thus, “the general rule that an attorney has the authority as an agent to bind his client on actions taken within the scope of the attorney’s authority.” Jurado v. Klein Tools, 755 F. Supp. 368, 370 (D. Kan. 1991). 

In the context […]