Question about retainer language and my rights (or lack thereof)

[DecentDad]

Hi Soc,

Recall that my attorney (recently dropped) had been billing me all along for his work to correct his failure to object to proposed judgment in a timely manner.  I've disputed each bill in writing per the terms of our retainer agreement, but never heard back.  Just watched the amount owed increase every month.

According to his office, I owe him $8k+, the vast majority of it clearly for his work to fix his error.

On bill disputes, retainer reads, "Unless you furnish our office a written objection to any bill or statement within 15 days from and after the date thereof, that bill or statement shall be deemed to be totally acceptable to you."

Retainer doesn't mention time period for attorney to address bill dispute.

ARBITRATION CLAUSE
There's a section entitled "Binding arbitration of disputes" that pretty much outlines that "any disputes between us" involving interpretation of the retainer agreement, fee disputes, performance of the attorney (including theories of malpractice, negligence, breach of contract, fraud, and breach of fiduciary duty) "shall be submitted to binding arbitration in L.A. County before a retired CA Superior Court Judge" following CCP 1282 and 1286.

There's a paragraph at the end of the Arbitration clause of the retainer that says the law firm has advised that I have a right to consult another attorney before signing the retainer, and that I DO or DO NOT desire to consult someone else.  That checkbox is left blank (i.e., I didn't sign either one).

On the first page of the retainer, it also says, "You will note that this Agreement contains a clause which provides that any dispute will be resolved by way of binding arbitration."

All of that said, nowhere in the retainer does it expressly say I am informed about and waiving my rights to bring action against my attorney in the event of malpractice.

SUBSEQUENT PROCEEDINGS CLAUSE
There's a clause that specifies that any proceedings subsequent to the judgment or order (i.e., that occurs after the law matter upon which the retainer is based) requires "separate negotiation and shall be subject to a separate written agreement."

1.  Am I screwed even considering the possibility of malpractice?  My damages would be additional attorney fees (i.e., his) and higher-than-guideline child support for months on end until remedied.

2.  Does the Subsequent Proceedings clause nullify the terms of the retainer agreement made before judgment, in that parties agreed a "separate written agreement" "must be" negotiated separately?  I.e., in that I didn't drop him until several months after the judgment was entered, it put us into the "Subsequent proceedings" period, and we never fulfilled the terms of the retainer by separately negotiating new terms (e.g., perhaps given that he had erred, I wouldn't have newly agreed to arbitration).

Thanks for your perspective,
DD

[socrateaser]

>1.  Am I screwed even considering the possibility of
>malpractice?  My damages would be additional attorney fees
>(i.e., his) and higher-than-guideline child support for months
>on end until remedied.

You can bring a malpractice compaint, but it will need to be submitted to a private judge, not a court action.

>
>2.  Does the Subsequent Proceedings clause nullify the terms
>of the retainer agreement made before judgment, in that
>parties agreed a "separate written agreement" "must be"
>negotiated separately?  I.e., in that I didn't drop him until
>several months after the judgment was entered, it put us into
>the "Subsequent proceedings" period, and we never fulfilled
>the terms of the retainer by separately negotiating new terms
>(e.g., perhaps given that he had erred, I wouldn't have newly
>agreed to arbitration).

I think you will have a tough time making a case that any of this extra stuff is actually post-judgment activity, because you are getting an extension on your time to appeal -- in short, if the judgment isn't final, then neither is your contract.

The next time you receive a bill, I would answer that you have timely complained about the billing since date X, and you received no response, therefore this indicates that your attorney agrees that your claim is valid and you are now paid in full.

Then it will be up to him to sue you, or write off your hours.

[DecentDad]

If I write that letter you suggest and enclose payment for the couple hours I believe are legitimate (e.g., when he recently opposed the OSC to change custodial schedule for daughter to attend aunt's wedding), and if I write "Payment in full per agreement" on the check... and if his office cashes that check... will that hold up to scrutiny that he accepted the terms of my letter?

DD

[socrateaser]

>If I write that letter you suggest and enclose payment for
>the couple hours I believe are legitimate (e.g., when he
>recently opposed the OSC to change custodial schedule for
>daughter to attend aunt's wedding), and if I write "Payment in
>full per agreement" on the check... and if his office cashes
>that check... will that hold up to scrutiny that he accepted
>the terms of my letter?
>
>DD

Well, in the past, you may have been able to pull of an "accord and satisfaction" using this method. But, now thanks to the enactment of the Federal "Check 21" Act, there is no guarantee that you will ever see your check again, if the bank that your attorney uses, generates electronic substitute checks.

In short, your evidence of the payment in full may end up shredded into nonexistence.

Regardless, you still should indicate in your letter to the firm, that: "The attached check is intended as 'payment in full' for what I believe in good faith is the liquidated value of my indebtedness to your firm, and your negotiation of said check is acceptance of full satisfaction of any and all debts, whether liquidated or not, existing or arising as of the date indicated on the check."

[DecentDad]

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