Attorney Withdrew

[bellasmom]

State: Florida

I am a mom in my 40's with four children (ages 8, 12, 14 and 17).  My husband has been having an affair for the past year and a half and we are in the middle of a divorce.  He is still living in the house with me and the children.

I have retained an attorney who has been working on the case for the past several months, but nothing has been done.  She has not filed any papers and we don't have any court dates set.  She has only responded to one thing filed by my STBex's attorney.  Now she has withdrawn from the case due to medical reasons.

I don't have any money for a new attorney.

1. Is there any way for me to get my money back from her since she has done extremely little with my case?
2. Without an attorney, is there a way for me to ask for an extension to respond to the latest paperwork from my ex's attorney?

[socrateaser]

>1. Is there any way for me to get my money back from her since
>she has done extremely little with my case?

Complain to the State disciplinary agency (usually, but not always the State Bar). Some States have funds that reimburse clients, where an attorney is provably incapacitated or runs with the client's retainer, etc.

Also, send a letter to attorney, certified mail, stating that:

"Due to your illness and withdrawal from my case, and because I believe that you have not provided any valuable services on my behalf, I am hereby disputing all of your past and current billing as unreasonable. Consequently, I hereby demand that you immediately provide me with evidence that all monies received by you from me remain deposited in your client trust account."

Now, having stated the above, if you have received billing statements from the attorney, those statements are the attorney's evidence of services rendered, for which she believes that she is entitled to payment. If you didn't object to those statements, then the attorney will have withdrawn the money represented on the billing statement(s), from her client trust account, and deposited that money into her personal account(s).

So, you need to go through the bills, and you need to DETAIL for every item of billing, your rationale as to why you believe that item is unreasonable, and then you need to send that to the attorney with your demand letter.

The objective is to make it very clear exactly how and why you are disputing the bill and the services not rendered. If you do all of this, then the attorney will be obliged to put your money back into the client trust account until you can reach a settlement of your dispute.

This is because, if she doesn't, then she risks being suspended or disbarred.

If you don't do what I'm telling you, exactly as I am telling you to do it, then the attorney will spend your money and that will be the end of it.

>2. Without an attorney, is there a way for me to ask for an
>extension to respond to the latest paperwork from my ex's
>attorney?

You can ask for a continuance on grounds that your attorney has withdrawn due to illness and has not reasonably protected your interests according to her legal duty of loyalty, care and competency.

Also, if you have joint assets from the marriage (home, stocks, bonds, jewelry, credit cards, etc.), and those assets are frozen by an automatic restraining order, or because they are held in your spouse's name only, so you cannot directly access them, you can ask the court to order that sufficient funds be released such that you can retain new legal counsel.

Under the circumstances, you don't need some perfect looking pleading. Just write a letter to the judge, explaining your situation, and the relief that you request, and include a statement swearing under penalty of perjury, that you have sent a copy of the letter to opposing counsel, before sending it to the judge.

Then take the letter to the courthouse and ask the clerk to file it and give it to the judge.

I hope that what I've given you is sufficient -- if not, let me know some more facts about what your exact financial circumstances are, and we can try a different tack.

[bellasmom]

In the letter she sent me, withdrawing from my case, she included an itemized bill detailing everything.  Almost all of the things she put were something like "Review letter sent from opposing counsel" or "Review questionnaire from client" and things like that.  Once or twice she wrote "Draft response to suchandsuch".  In other words, almost all of her actions were "reviewing" something or other.  Very rarely did she actually do anything.

1. How would I word the part where I detail my rationale as to why I believe the billing is unreasonable?
2. Once the money is in the client trust account, what is the next step to "reach a settlement of my dispute"?
3. Is this something my new attorney can help with?

[socrateaser]

>In the letter she sent me, withdrawing from my case, she
>included an itemized bill detailing everything.  Almost all of
>the things she put were something like "Review letter sent
>from opposing counsel" or "Review questionnaire from client"
>and things like that.  Once or twice she wrote "Draft response
>to suchandsuch".  In other words, almost all of her actions
>were "reviewing" something or other.  Very rarely did she
>actually do anything.
>
>1. How would I word the part where I detail my rationale as to
>why I believe the billing is unreasonable?

"Reviewing" is doing something. Lawyers get paid to review correspondence and consider an appropriate response.

The question is, did she do something with the review, i.e., did she discuss the matter with you and develop a response, or did she just read it. If all she did was read it, then you probably have an argument that her actions were unreasonable, because she never even bothered discussing the matter with you. But, if she did discuss and then draft a response, then she's entitled to her money, because that's reasonable lawyer-like activity.

I can't draft a hypothetical response to her bill, without actually seeing the bill and what she did in the case file, and what you say she did or didn't do. And, I don't have time to do that sort of "review" because if I did you'd be paying me, and I can assure you that I'm twice as expensive as she is. LOL!

>2. Once the money is in the client trust account, what is the
>next step to "reach a settlement of my dispute"?

Well, the first thing is, that if any of your bills is more than 30 days old, then she's gonna argue that you had time to object and your silence operated as consent to the charges, therefore she doesn't need to return the money. So, it's far from assured that the money will be in the trust account -- in fact, I'd say that the chances are slim.

But, you must make the demand, if you're gonna complain to the State disciplinary authority, because if you don't, then there's nothing for them to investigate.

More than likely, your attorney is gonna say, "sue me." If your letter says something like, "I would like to settle this imatter in an amicable manner, without resort to litigation or complaint to the State disciplinary agency. However, if I do not receive some positive response from you within the next 10 days, I will assume that you don't wish to negotiate and I will seek appropriate relief," then you will either get a response or you will know that she's telling you to stick it where the sun don't shine.

Be careful how you word the letter. You cannot say, "If you don't do what I demand, then I will do X," because that is extortion. You are merely looking to negotiate this matter, rather than go to court.

>3. Is this something my new attorney can help with?

Depends on the lawyer. Most attorneys don't sue each other, because they have to work together and that messes with the relationships. In reality, your only option is to complain to the State Bar/disicplinary agency. If they agree that you've been screwed around with, then you will get your money back, because the lawyer will be in serious hot water.

Otherwise, you should be prepared to just kiss your money goodbye, although, your contract with the attorney may have a mandatory fee arbitration clause, in which case you can invoke that and then take your complaint before the arbitrator, who will decide if the attorney did not provide reasonable services for your money.

[bellasmom]

nt

[DecentDad]

Soc,

You may not recall too well that my attorney failed to object to a draft judgment in 2004 that included CS and childcare figures that were $400/month higher than guideline (i.e., settlement didn't include that, and I told him to object to it, and he confirmed in correspondence of his awareness about it).

Attorney didn't object to counsel within the 10 days, nor at any time to the court other than orally at a hearing to say he wanted his own draft judgment entered.  Judge told him he should be making objections, not burdening the court with two drafts.  He still didn't file objections.

Judgment got entered 6 weeks later, attorney tried to vacate, reconsider vacating.  Everything denied.

Attorney continued billing me for all of the above work, and I immediately disputed every bill in writing (though I never heard back).  Came to $9,000.  I was at zero balance before that mess started.

I dropped attorney, went pro se, ended up getting CS modified and biomom's income imputed (six months after entry of judgment, so I arguably incurred $2400 of damages due to higher-than-guideline CS/childcare).

Per your advice in early 2005, I went through the invoices and figured that he had done a total of two hours of work not related to fixing his error.  I offered that amount to settle everything.

He wrote back three months later, sending my check back, acknowledging we have a dispute, offered to settle for $6k, and referred me to our mandatory binding arbitration clause (i.e., the language states that arbitration is required prior to any litigation, though it doesn't mandate which party must start the arbitration process).

That was June 2005.  I still get monthly invoices, with 10% interest.

I haven't heard anything else from him.

In my county, arbitration fees (upfront) are 5% of the disputed amount, so one of us will have to pony up $500 to start it.

I'd sooner let it die a slow death and potentially disappear.

1.  Should I do anything besides wait for him to initiate arbitration (if ever)?

Thanks,
DD

[socrateaser]

>1.  Should I do anything besides wait for him to initiate
>arbitration (if ever)?

I'd have to read the exact text of your contract, but, since he hasn't requested arbitration, he evidently doesn't think much of his chances. He's an attorney, after, all, so he should be able to smoke you, unless he thinks that he might end up with an ethics complaint.

Statute of limitations for a California contract is 4 years, so you have 3 1/2 to go. He could sell the debt to a collections agency, then you'd have to deal with that crap.

At the moment, if you've complained in writing and in detail, then I think the ball's in his court.

[DecentDad]

Regarding ethics complaint... he advised me that he HAD objected (when I called to check to make sure).

Once I was pro se and asking the court for equitable relief (i.e., my own reconsideration motion), judge said he's sorry to be the one to inform me that regardless of what my attorney claimed, no objections were ever filed (and opposing counsel claimed never to have been served with any either).  Judge's words are in the hearing transcript.

I've heard similar stories from two other men that has me thinking this isn't uncommon with this firm (a divorce mill that apparently sucks in retainers, misses deadlines, and services only the big clients).

Anyway, aside from copies of the letters I sent to him disputing the fees, I have correspondence FROM him acknowledging that we're in dispute of the fees and advising me that arbitration is the route we must go.

1.  I've been holding off on a bar complaint until if/when he ever came after me, then would file it (I think I have 5 years) as something to leverage (i.e., withdraw complaint as resolved if bill is zeroed).  Decent strategy?

2.  If he sends it to collections, wouldn't that open up a whole new can of potential damages after he recognized in writing that there's a dispute that needs to be arbitrated?

DD

[socrateaser]

>1.  I've been holding off on a bar complaint until if/when he
>ever came after me, then would file it (I think I have 5
>years) as something to leverage (i.e., withdraw complaint as
>resolved if bill is zeroed).  Decent strategy?

Well, if the State Bar takes the complaint and finds it has merit, then the it will be "State Bar of California v. YOURATTORNEY". You're completely out of the picture, except as a witness, so once you complain, your leverage in this area will be gone. All your leverage is before you complain, and of course if you use that as leverage, you could be committing extortion, so bee careful.

>2.  If he sends it to collections, wouldn't that open up a
>whole new can of potential damages after he recognized in
>writing that there's a dispute that needs to be arbitrated?

If he's suggested arb, then he's not gonna go to collections -- but, if he's in a big firm, the office manager/controller may just send it to collections without even asking what it's about. That happens frequently. You'll have to explain your reason for not paying to the manager, who will probably take it up with the Senior partners and the attorney, and that may be why the attorney is not rocking the boat, because his employers may want to know how he managed to not get a retainer out of you in advance. They don't like associates working for free.

[DecentDad]

He's lead attorney (i.e., "Law Office of His Name") with about 8 to 10 associates at any given time.  He's got 30+ years' experience.  He just royally screwed up on my case with that draft judgment and then apparently lied about it.

Regarding monies, I did rack up approx $30k during the preceding year (all reconciled monthly), and stopped paying when this matter began-- I expected him to clean up his mess on his own dime and said as much in every bill dispute.

Gotcha on how the bar complaint works.  So, lack of action on his part (I dropped him a year ago) suddenly makes more sense now, given what you said... if me filing a complaint is a one-way path and potentially a bigger headache than $9k.

He had a public reproval disciplinary action from a few years ago, though I never looked up the details.

I suggested in my offer of settlement letter that we merely part on civil terms with neither of us taking any further action or complaints, so the threat was veiled but pretty clear.

I guess it doesn't cost him anything to send a letter full of intimidating hot air and offering 2/3 settlement (that was June, and nothing else happened), nor sending me invoices monthly.

Anyway, I feel more assured now that I'll probably just have to ride out the 4 years.

Thanks