Published on February 10th, 2012 by Alan L Sklover
Question: I recently won a lawsuit and the lawyer who handled my case got more of the settlement than I did. He sprung a cost bill on me for $12,000 at the last minute. I almost fell out of my seat since he already took 40%. Since it is over $10,000, it seems to be over the Small Claims amount.
Do I have to hire a second lawyer to go after the first one? What else can I do?
Answer: Dear Lin: I am always unhappy to hear of people having bad experiences with their attorneys. And even more unhappy when the word “overcharging” is used. It is not good to feel that the person you hired to help you turned out to hurt you in the process.
1. First, and foremost, carefully read over your attorney retainer agreement: does it permit the attorney to do what he did? This is really important. If, for example, you agreed in that agreement that the attorney could charge you the expenses, and not share them with you, then you can say that you were misled about the amount of the expenses, or that you did not understand that. Also, is his $12,000 really all for expenses? On the other hand, if the agreement says that the attorney must share the expenses with you, and he did not do that, the attorney has a far more serious charge to contend with: in effect, that you have been deliberately overcharged. That is far more serious. If the agreement is vague, then you have a good argument that the vagueness was his doing, and so should be his problem, not yours. So, first carefully read over the agreement.
2. Second, I suggest you put your view into writing, and send it to your attorney in a “verifiable way,” such as Certified Mail, Return Receipt Requested, FedEx or UPS Overnight. Give a brief history of how you met this attorney, what he said to you, whether or not your agreement with the attorney was in writing, whether or not any questions you had were explained to you, whether or not you had the opportunity to have another attorney look it over for you, do so with clarity, specificity and respect. Do not use words like “theft,” “stolen,” “malpractice,” or other allegations of criminality or incompetence, as that will only hurt you.
In that letter ask for the return of the amount of money you think he should return, and how you came to that number. This will establish a clear “record” of what happened for you, for the attorney and – most importantly – for anyone else who reads it. It will also give you credibility in the eyes of others who may read it. It is my hope – and almost expectation – that the attorney will respond to it in positive fashion, either with a refund or with an offer of settlement.
3. Third, if the attorney has partners, send it to his partners, too. Sometimes it takes another person to talk sense into people, and I’d say that is often the case with attorneys. Since an attorney’s partners may be calmer, more objective and less emotional than the attorney himself, this might enable a resolution that your attorney, by himself, could not come to. It gives the attorney a fresh look, and perhaps another reason, to resolve this with you.
4. Fourth, a most effective way to deal with attorneys is by Filing a Complaint with the appropriate Attorney Disciplinary Board. In almost every jurisdiction there are Legal Ethics Committees, Attorney Disciplinary Boards, or Legal Licensing Agencies that oversee attorney ethics, licenses, and complaints. By this I do NOT mean state, county or city Bar Associations, which are merely professional trade associations that attorneys join only if they want to. If you don’t know the address of the Legal Ethics or Attorney Disciplinary Board where you live, you can request this information (a) from the attorney, himself, (b) from almost any attorney with an office in the same town or city, (c) from the local Bar Association, or (d) the internet, by putting “city, town, attorney complaint” into a search engine. Almost always, attorneys have to file answers to complaints filed with Ethics Committees, and many will simply settle such disputes instead of having to submit himself to this process. In egregious cases, these Boards can even recommend the attorney be disbarred.
5. Fifth, do not assume that you cannot represent yourself in Courts “above” Small Claims. Courts are extremely sensitive to (a) claims of clients against attorneys, and (b) people who cannot afford attorneys. So, they assist people like yourself in filing and pursuing what is called “Pro Se” matters; that is a legal word for “Representing Yourself.” Trust me, the Court will strongly encourage, if not demand, that your attorney settle with you, if not reimburse you totally. Courts have “their ways” of telling attorneys what to do, they really do.
6. Next time, you’ll be a bit more careful. Lin, I am hoping you come away from this experience with, first, the sense that as a client with a complaint, you aren’t powerless, and you don’t have to hire a second attorney to go after the first one. Second, I am hoping you come away from this experience with the sense that you can “stand up” for yourself successfully, even with attorneys. And, third, next time you deal with an attorney, ask questions, and get all of your concerns adequately addressed in your written attorney retainer agreement. Preventing problems is the best way to handle problems.
Lin, thanks for writing in. I hope these suggestions will help you, I really do. On behalf of my “fellow attorney,” I am sorry for your bad experience.
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© 2012 Alan L. Sklover, All Rights Reserved.