Problems with Attorneys Archives

Human Resources . . . Employee Relations . . . What’s the Difference?

Published on February 26th, 2019 by Alan L. Sklover

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Question: Recently, a female colleague reported to my Department Head that she felt she was being harassed. I received an email from someone in “Employee Relations” asking that I meet with her to be interviewed as part of an investigation.

What’s the difference between Human Resources (“HR”) and Employee Relations (“ER”)?

She said she is a lawyer, but that she does not represent my employer. Could that be?

Jessica
La Vergne, Tennessee

Answer: Dear Jessica: Your question is a very common one. It is wise of you to ask this question because it is always prudent, before you speak with someone about something that may be important, that you try to understand who they are, what they seek, and what their interests may be in speaking with you. Here are my thoughts:
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“How can I get an extension to file a lawsuit on my own?”

Published on December 11th, 2013 by Alan L Sklover

Question: Alan, I have a legal claim and would like to file a lawsuit. However a deadline is soon approaching, and I have not yet hired an attorney.

How can I get an extension of the time to file my lawsuit on my own, that is, without an attorney?

Bonnie
Moncton, Canada

Answer: Dear Bonnie: As you may know, I am not licensed to practice law in Canada, so what I suggest below may not be applicable to you. However, it is applicable to most states and countries in which I have worked with “local attorneys,” and therefore I think it is likely applicable in Canada, as well. 

1. A law that sets a time limit to file a lawsuit is called a “statute of limitations.” In the majority of countries, including Canada, laws specify how long after an “event” or “injury” takes place a person can sue for damages in what is called a “civil” case, or a prosecutor can prosecute the person in what is called a “criminal” case.

 For example, in Canada, for “misdemeanor” or “summary” crimes, which are lesser crimes, there is a six-month criminal statute of limitations. After that period, a defendant can no longer be involuntarily prosecuted. However, for more serious crimes in Canada, there is no statute of limitation. So, for example, for a crime of robbery or rape, a prosecution can be brought even 30 years later. 

In Canada, as in almost all countries, “civil” lawsuits have different “statutes of limitation.” A case for collection of a debt, for example, must be brought within six years. In the U.S., each state sets its own statutes of limitation for different criminal and civil cases. In Canada, statutes of limitation are established by both the federal and the provincial governments. 

To find out the applicable Statute of Limitation for your case, you can probably find it out by conducting an online search engine search, or by contacting your local Court or Tribunal. And, too, an attorney might do you a small favor by looking it up for you.   

2. In a “civil” case, that is, one brought by one person against another, to get an extension of time to file your case, you need to ask the “defendant” to agree to it, in what lawyers call a “Tolling Agreement.” As a general rule, if you want to sue a person or company, and the deadline for doing so is approaching, you have to ask the other person or company to enter into a “Tolling Agreement,” in which both “sides” agree to extend the time period for filing the Complaint.

Sometimes, the parties enter into a Tolling Agreement so that they can have time to speak about settlement of a case without filing in Court. Commonly, the “defendant” against whom a lawsuit is threatened will not agree to do this, unless it is in the defendant’s interests. No  precise form of Tolling Agreement is necessary, but it is important to be clear about (a) the legal claim that is being extended, (b) when the Statute of Limitations is set to expire, and (b) to what date the parties agree to extend it.   

3. However, sometimes laws do not permit Tolling Agreements, or limit their application. For example, in January of 2004, in Ontario, the Statute of Limitations for a breach of contract case was changed from six years to two years, and by that law it was declared that this two-year deadline applies “despite any agreement to vary or exclude it.” Also, in the U.S., after the Equal Employment Opportunity Commission permits a person to sue for discrimination in Federal  Court, that person has just ninety days to do so, and the Courts have said that parties to the lawsuit have no ability to extend that deadline, even if they wish to or have agreed to. 

4. Quite often the smartest thing to do is to quickly file the most minimal papers necessary to start your lawsuit on time, with the help of a Court Clerk, and then later amend your Court papers or have an attorney do so for you. If you are tight on time due to an approaching deadline to file your lawsuit, and you have doubts about whether your adversary will agree to sign a Tolling Agreement, you might travel to the Court and describe your dilemma to the Court Clerk, and request some minimal assistance in filing the necessary papers. This is what I would, indeed, recommend.   

5. Some Courts, like the U.S. Federal Courts, have special Court Clerks called “Pro Se” Clerks, who work full-time for this very purpose. “Pro Se” means “For Yourself,” and I have heard many times of Pro Se Court Clerks showing people in your circumstances an example of a Court  Complaint someone else has filed that you can use as a Model or Sample. In addition, I have heard many times of attorneys who are willing to show “samples” they have filed in the past to people in your situation. Also, many Courts have files online, available to all, and in this way, if your local Court does so, you might see a good sample to follow. 

After your Court filing, and if necessary after “serving” a copy of the Complaint – that is, delivering it to the defendant – you can almost surely later “amend” your Complaint to make it better, or an attorney can do that for you. 

Keep this thought in mind: If you do, at least, file “something” before the applicable legal deadline, you have a better chance of not losing your legal rights than if you just did not file “anything” at all.   

Bonnie, I hope this is helpful to you. Don’t let your legal rights expire. I applaud you for standing up for yourself!! Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!!

My Best,
Al Sklover

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2013, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Attorney I hired for a flat rate fee won’t finish until I pay more; what do I do?”

Published on August 28th, 2013 by Alan L Sklover

Question: I am a single mom in Florida. I hired an attorney for a flat rate to handle my case. Two months ago, the Judge ruled on the case, and my attorney is supposed to draw up the final settlement documents. 

Since then, I can’t get her to prepare the final papers. When I mentioned this to her she said that the flat rate did not include the final papers. Can my lawyer hold back on the final papers until I pay more? Thank you.

Alicia
Orlando, Florida

Answer: Dear Alicia: The answer to your question is “No,” but it may take a bit of work for you to get her to do the right thing. Here are my thoughts:    

1. A deal is a deal is a deal. There is no question about it: if your lawyer agreed to handle your case for a “flat rate fee,” that “flat rate fee” should include the final Court papers you describe. It happens a lot: lawyers who agree to a “flat rate fee,” which is something many clients ask for in order to limit their expense, “enjoy” getting the business and the initial check, but often “chafe” when the job takes longer than they like. Well, “too bad” for them, because “a deal is a deal is a deal.”

2. Was your agreement with your lawyer in writing or confirmed in an email? Your note to me did not mention whether your agreement with your lawyer was in writing. That makes me concerned that your lawyer may claim you and she had a different deal, perhaps something like “$2,500 for the Court appearances, but final Court documents are extra.”  

If your agreement with your lawyer was in writing, then the words of that written agreement are entirely enforceable, and controlling on both of you. If your agreement was not in writing, then any emails, witnesses or circumstances that would support your version of the agreement should be gathered together. Even if you have no “evidence” the deal was “A flat fee of $2,500 for the entire matter,” that does not mean you can’t enforce it. In fact, most of the agreements we make on a daily basis are “spoken” and not “written.” It would then be a matter of who is more credible – you or your attorney. As you might know, not too many people believe attorneys, especially in matters like these.   

3. You should now write to your attorney, and send your letter in a “verifiable manner,” insisting she honor the deal she struck with you. I don’t know whether your communications with your attorney have been “spoken” or “written,” but it is important that you now put into writing (a) the initial deal, (b) her seeming to dishonor that deal, and (c) your insistence that she act honorably and complete the task. It should be clear, respectful and specific, written in such a way that your grandmother would be proud of you, and even a middle school student can understand it. That is the standard of good, effective writing that I hold my own writing to. Understand that one day, it may be read by others: (i) the Judge in the case, (ii) the Attorney Ethics and Disciplinary Authorities in your community, and (iii) possibly even one day a jury. In fact, I suggest you put “cc: Judge and Attorney Ethics and Disciplinary Authorities” at the bottom of your letter. 

By the way, by “verifiable manner” I mean email, Certified U.S. Mail, Return  Receipt Requested, UPS Overnight or Federal Express.    

4. I suggest you send a copy of your letter to the Judge in your Court case, with a note asking him or her to assist you in finalizing the matter. Judges like to get cases resolved, something in legal circles we call “dispositions.” For this reason, your Judge might just contact your attorney and tell him or her, “Get this thing done.” While it is not the “official” way for Judges or their Law Clerks to get cases “disposed” of, it is a way many use to simply “get things done.” Chances are your attorney will be sufficiently “motivated” by just the “cc” to the Judge at the end of your letter, to do the right thing, now, and without additional charge.   

5. Only if your letter to your attorney, copied to the Judge, does not work would I then suggest you actually send a copy of your letter to Attorney Disciplinary Authorities. Attorney Disciplinary Authorities tend to act quite slowly and your need for the final Court papers seems to be a bit on the urgent side. Also, the amount of work your attorney would have to do in order to answer any inquiry from the local Attorney Disciplinary Board would probably be more than the Court papers she is avoiding. 

You can find your local Attorney Ethics or Disciplinary Board by putting “Orlando,  Florida” and “Attorney Ethics, Bar Association” or similar words into a Google, Yahoo or Bing search engine and seeing what comes  up. 

It’s bad enough having to stand up with a lawyer; it should not be the case that you need to stand up to your lawyer. I think this course of action will work for you. I hope this has been helpful. Thanks for writing in.    

My Best,
Al Sklover

P.S.: Help Us Stand Up for Employees! To keep up “the fight” takes a lot. Join others who have expressed their support. Consider a $25 contribution to our site by PayPal. Just [click here.]

Repairing the World –
One Empowered and Productive Employee at a Time™

© 2013 Alan L. Sklover, All Rights Reserved.

“How to File a Federal Lawsuit without an Attorney”

Published on January 17th, 2013 by Alan L Sklover

Question: Hi, Alan. I filed a Charge of Discrimination with the Federal Equal Employment Opportunity Commission (“EEOC”) against my employer because I was being bullied by my boss, along with being treated differently from other co-workers in my department on several levels. 

I received from the EEOC a “Right to Sue Letter” a month and a half ago, and my time is running out to file my Federal discrimination lawsuit. However, no attorney around these parts will take the case because I was not fired and I think they do not want to go up against my employer because they are well known around these parts. 

What can I do next?

Brenda
Rantoul, Illinois

Answer: Dear Brenda: Our society helps those in your circumstances to get your “day in Court” in several ways:    

1. Your best bet would be to contact the “Pro Se Law Clerk” for the Federal District Court nearest you. When the EEOC issues a “Right to Sue Letter” you then have ninety (90) days in which to file your lawsuit in your local Federal District Court. Each of the Federal Districts Courts has at least one “Pro Se” Law Clerk to assist individuals, like you, who do not have attorneys representing them. “Pro Se” is a Latin phrase that means “For Oneself” and a Pro Se Law Clerk’s sole job is to assist individuals in your circumstances in filing and maintaining a lawsuit by yourself. 

The staff of the Pro Se Law Clerk in your Federal District Court can help you by answering questions about forms, deadlines and procedures, but they are prohibited from giving you actual legal advice. Most have a ready supply of forms for your use to fill in, or model your Court materials from, as well as written guides to filing your case without an attorney. 

The Pro Se Law Clerk’s office cannot, however, (a) recommend a legal course of action, (b) predict how a Judge or Court will decide any issue, (c) interpret the meaning of a Judicial Order, or (d) interpret the law, legal doctrines, or cases for you. 

To contact the Pro Se Law Clerk for the Northern District of Illinois, which is your Federal District, you can call (312) 435-5691. 

2. Additionally, Law School “Student Law Clinics” often provide supervised law students to assist those without attorneys in matters such as yours. Many law schools have “Law Clinics” which are comprised of law students, acting under the supervision of clinical teachers, Law Professors and experienced attorneys. Law Clinics commonly assist those without attorneys deal with either the Court system or government agencies while giving students practical training intended to help them develop effective advocacy skills.    

In your area, The University of Chicago Law School is home to many student legal clinics, including one that might just be best for you: the “Employment Discrimination Project.” To contact them at the University of Chicago Law School, go to www.law.uchicago.edu/clinics/Mandel/employment or dial (773) 702-9494.   

3. A third approach would be to try to obtain an attorney’s guidance and assistance – even if it is not representation – by means of a Bar Association’s “Pro Bono” assistance programs. Many states and local bar associations suggest – and some even require – that their attorney-members engage in what is called “pro bono public” legal efforts. “Pro bono publico” (or “pro bono” for short) means “for the public good.” You might try to locate an attorney who is interested in your case, or the issues you raise, who will either take on your case, or act as a legal advisor to coach and mentor you through the federal lawsuit process. 

Though most attorneys are quite busy in their own law practices, (a) younger lawyers seeking experience, (b) older lawyers who are retired or semi-retired, and (c) many other lawyers who are seeking experience in a new area of law, may be willing to assist you without charge, or for a reduced charge. 

I would suggest you consider this way of moving forward, and contacting the Illinois State Bar Association at (217) 525-1760, or visit their “LawyerFinder” website at www.illinoislawyerfinder.com

4. While I am sure representing yourself sure sounds difficult, intimidating and complex, the Federal Courts are really quite patient, accommodating, and understanding with people who cannot locate or cannot afford attorneys, and so represent themselves in Court. I must admit that I am almost always quite impressed at how kind, helpful and compassionate most Federal Court personnel – and most especially Federal Judges – are to people in your circumstances. With lawyers, while always polite and gracious, Court personnel can be a bit “unforgiving,” but with non-lawyers they really are quite wonderful. I have seen just super-human patience and compassion shown to those who have the courage and conviction to represent themselves in Court – which is their right to do. I think representing yourself in Federal Court might be a daunting challenge, it might, too, be a wonderful and inspiring experience for you. 

And what an advantage you have over attorneys: you cannot be disbarred! (Just joking.) 

5. No matter what you do, Brenda, you cannot miss your deadline for filing your lawsuit – there will be no “second chance” given to you. One thing I do want to share with you, Brenda, is that your deadline for filing your Federal Court Complaint (what we lawyers call the “Statute of Limitations”) is not flexible, but entirely strict and unforgiving. Read the instructions carefully on your “Right to Sue Letter” issued to you by the U.S. EEOC, because it sets forth your Statute of Limitations for filing your Federal Court Complaint. Even if it is not perfect, complete or exactly what you’d like it to say, I do recommend you do not permit yourself to miss that deadline, because to do so is, what in law we call “fatal to your claim.” After filing, within a reasonable period of time you will be able to file an Amended Complaint, but only if you met your deadline with your initial Complaint. 

Brenda, I admire and respect you for standing up for yourself, and persevering. The world surely needs more people like you!! I hope this answer has been helpful to you.      

 My best to you,
Al Sklover

P.S.: If you would like to obtain a list of five or more experienced, “employee-side” employment attorneys in the Chicago area, just [click here].

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

“Can an attorney refuse to finish my case because it is more difficult then he thought?”

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?   

Emmett
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.   

Best,
Al Sklover

P.S.: If you would like to obtain a list of five or more experienced, “employee-side” employment attorneys in the Los Angeles area, just [click here].  

Repairing the World –
One Empowered and Productive Employee at a Time ™  

© 2012 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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