Delaware Trial Handbook § 1:1. THE ATTORNEY IN THE TRIAL OF THE CASE

Any person admitted by the Delaware Supreme court to practice as an attorney in Delaware may commence actions, prosecute and defend suits, draw writs, process and pleadings, and practice generally in the Delaware courts.1 A party to a proceeding in a Delaware court may be, but is not required to be, represented by a Delaware attorney. A party who appears without an attorney (“pro se”) may perform for himself or herself all functions that would be performed by an attorney representing that person. A lawyer may not appear for a party unless authorized by the client to institute suit or appear in defense of that client. When the attorney appears in an action for one of the parties, the attorney’s authority, in the absence of proof to the contrary, will be presumed.2  When the lawyer is so authorized, the client may no longer perform any functions ordinarily performed by the attorney. The client may at any time discharge the attorney and resume his or her pro se status.

An attorney who has made an authorized appearance for a client needs no further specific authority from the client to conduct all procedural aspects of the case, including trial, to make all decisions of strategy in the case and conduct of the trial and to stipulate as to procedural matters and as to facts to be agreed upon at trial without formal proof. The rationale behind the recognition of this broad grant of authority to an attorney is that the attorney should have wide latitude within which to act on behalf of the client in order to promote efficiency in the presentation and conclusion of litigation.3  The broad grant of authority to an attorney is, of course, subject to the ethical requirement that the lawyer abide by the client’s decisions concerning the objectives of the representation and consult with the client as to the means by which they are to be pursued.4

The attorney may not act, in a manner injurious to the client’s rights.5 The authorization by a client to the attorney to appear and conduct the case does not automatically constitute a grant of authority to compromise and settle the case.6 While the attorney of record is presumed to have lawful authority to compromise the client’s case, this is only a presumption, and the client is entitled to an opportunity in a hearing to rebut the claim.7

1. 10 Del. C § 1906.

2. Hill v. Mendenhall, 88 U.S. 453 (1875). See also Friedman v. Booth Fisheries Corp., 39 A.2d 761 (Del. Ch. 1944) (overruled on other grounds by Zeeb v. Atlas Powder Co., 87 A.2d 123 (Del. 1952)).

3. Vance v. Irwin, 619 A.2d 1163, 1165 (Del. 1993); Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 244 (Del. Ch. 1978).

4. Del. R. Prof. Cond. 1.2(a).

5.  Vance v. Irwin, 619 A.2d 1163, 1165 (Del. 1993); Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 244 (Del. Ch. 1978).

6. Vance v. Irwin, 619 A.2d 1163, 1165 (Del. 1993); Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 244 (Del. Ch. 1978); Aiken v. National Fire Safety Counselors, 127 A.2d 473, 475 (Del. Ch. 1956); Wood v. Bangs, 48 A. 189, 191 (Del. Super. 1900).

7. Aiken v. National Fire Safety Counsellors, 127 A.2d 473, 476 (Del. Ch. 1956); Shields v. Keystone Cogeneration Systems, Inc., 620 A.2d 1331, 1335 (Del. 1992); Strattner v. Wilmington City Electric Co., 53 A. 436, 437 (Del. Super. 1901). See also Moyer v. Moyer, 602 A.2d 68 (Del. 1992).

© 2010 David L. Finger