Published on September 18th, 2012 by Alan L Sklover
Question: I hired an attorney to represent me at a flat fee of $3,500.00. He recently sent me an email stating he was dropping me because he felt I was an “uncooperative client.” I have a signed retainer contract – but he now wants me to sign another retainer contract at the higher amount of $350 per hour.
Some of the other arguments in his email are that the case is more complicated and that I do not listen to his advice. Don’t I have some say? Can he drop me if I refuse to sign the new retainer contract?
Los Angeles, California
Answer: Dear Emmett: From what you have told me it sounds as if your attorney is acting in violation of both (a) your retainer contract and (b) legal ethics. You deserve better. Let me explain:
1. Just like everyone else, attorneys must abide by the terms of their contracts. Everyone who enters into a contract has a legal obligation to honor that contract, unless some good reason exists that might be considered a valid excuse for their failure to do so. Otherwise, they are responsible for either the return of the money paid to them, or any and all “damages” that were suffered by the other contracting party as a result.
Attorneys are just as bound by their contracts as are all other people, as a matter of law, and also as a matter of legal ethics. If you paid your attorney $3,500 to take care of your entire matter of concern or your legal case, then he is obligated to finish the job for that price, unless some very good reason excuses him from doing so. If he does not do so, he can be held responsible for any costs you incur to replace him, or the return of your $3,500. He can be held to have violated legal ethics, as well.
2. While several things might excuse a person from fulfilling his or her contractual obligations, I did not see anything that would excuse your attorney in your email. With a great deal of common sense, the law excuses some people in some situations from fulfilling their contractual promises. Here are a few examples: (a) if a painter agrees to paint a house, and before she does so, the house burns down, (b) if a bookstore agrees to deliver 10 books to a purchaser, but the purchaser’s check in payment for the books bounces first; and (c) if a restaurant agrees to buy and pay for 20 pounds of fish every Friday, but the fish delivered one Friday are rotten. There are many other such examples, all arising out of common experience and common sense over the years, and this is how, over time, our law “grows.”
3. An attorney is quite wrong to threaten to stop services, or demand more money, because a matter of concern or legal case is more complicated than he or she thought at first. What you describe is unquestionably a breach of contract by your attorney. First, life – and the practice of law – is such that things are often more complicated than they may seem at first glance. When someone – and especially a professional – sets a single, “flat fee” for a complete service, they have to take into account that some situations are resolved simply, and some are or become more complicated. They have to factor both of those possibilities in when they set their “flat fee.”
Can you imagine what people would say if a surgeon, in the middle of a surgery, found a patient’s illness more complicated than he or she thought, and the surgeon demanded more money from the patient’s family to complete the operation? How about this: Would your attorney have returned half of the $3,500 you paid him if the matter or case was resolved more quickly or easily than he expected? My guess is “No.”
From what you have described, I see no reason to believe your case was any different than the attorney should have known it might be when he was first retained.
Additionally, all legal matters have in them a certain degree of unpredictability; that is just the nature of the law. That is why even our U.S. Supreme Court sometimes votes 5 to 4 about what a certain law means, or the right result in a case.
4. No client must accept and follow an attorney’s advice; that is always in the entire discretion of the client. This particular part of your attorney’s “reasons” for wanting to either abandon your case, or get paid more, is 100% wrong, and without any basis in the law. An attorney’s client is free to take, or reject, the attorney’s advice; that is the right of the client.
I am confident that your retention agreement with your attorney did not say, “The client agrees to follow the attorney’s advice in all events.” I have never heard of such an agreement, and even doubt that it would be enforceable, as it seems quite unethical.
5. If you are in Court, an attorney’s withdrawing from the legal case is usually (but not always) permitted by a Judge when it can be shown to that Judge that the client truly refuses to communicate with the attorney. If a case is in Court, an attorney must obtain the consent of the Judge to be removed from the case. Because it can cause “prejudice” to the client’s case to lose the attorney mid-way through the case, and because it can cause inconvenience to both the other party to the case and to the Court, many Judges are reluctant to permit an attorney to remove himself or herself unless the attorney shows a substantial and good enough reason to do so.
As noted above, “This case is more difficult or time-consuming than I thought it would be” is never a good enough reason to permit an attorney to remove himself or herself from a legal case.
If a client truly will not speak with the attorney, or communicate at all in other ways, most Judges will grant consent to the attorney’s removing himself of herself from the case. Even in that situation, though, the Judge will almost always give the client time to find a new attorney.
If your matter is not a case in Court, the attorney is freer to withdraw, but not without potential legal and ethical problems.
6. If your matter is not presently in Court, or if it is presently in Court and a Judge says the attorney may withdraw from that case, the attorney must return at least part of the “flat” or “one sum” legal fee, or even the whole fee, as the attorney did not fully earn the whole fee. It’s that simple: the “flat” or “one sum” legal fee was intended to get you legal services until the matter or case was over and done with. Since the attorney might withdraw before that, he or she must return a fair part of the fee to you. If you are in the middle of a Court case, make sure the Judge knows of the “flat” or “one sum” fee, and that your attorney is demanding more than he agreed to.
7. My suggestion: contact the Attorney Ethics Panel in Los Angeles. May I suggest you contact the attorney ethics authorities in Los Angeles and request their intervention and assistance in getting you a return of at least part – if not all – of the legal expense you incurred. You can do that at: State Bar of California, Chief Trial Counsel, 1149 South Hill Street, 10th Floor, Los Angeles, CA 90015-2299, (213) 765-1468; Fax: (213) 765-1029; Website: www.calbar.ca.gov. You can also ask that the attorney be punished for what appears to be a breach of legal ethics.
Emmett, I am sorry to hear of how your attorney is treating you. It makes me feel a bit ashamed to be an attorney, myself. Thanks for writing in, and I with you the best in getting your matter or case resolved with an attorney who is honest, ethical and effective. You deserve NO LESS.
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