Refund of Retainer

[Hazel]

Dear Soc,

Again thank you so much for all you do here.  I can't possibly put into words how much your responses, both to me and to others, have helped.

 I strongly feel that my attorney did not represent me diligently.  This matter should have been wrapped up months ago, and from the getgo was a slam dunk.  It is still dragging on due to her inaction.  

When I asked her why on earth she didn't file a motion to dismiss after the OC had been shut down by facts, her ONLY response was "Because I thought you wanted to do this cheaply, and that would have cost money."  Ummm... yeah, but losing due to her inaction and indifference will obviously cost way more than filing a simple motion in a timely manner.  (Further, I never said that I wanted to do it "cheaply".  I, of course, wanted to avoid the expense a full blown trial if possible.)

Nonetheless... Sorry for rambling... I spoke to another attorney today, and now I will be paying another retainer because I can't take this for one more day.  When I asked him what he thought the judge would think if I switched attorneys mid stream, he told me outright that the judges at the court house aren't at all surprised to see my former attorney's clients fire her in the middle of a case.

I've read and copied some of your comments to others in the past regarding attorneys and recovering fees.   The advice that you gave for disputing charges was advice that I'd like to take.  The problem is that I have never received a bill from her, so I've nothing to dispute item by item.

I paid a $1000.00 retainer back in January.  She may have used it all, but I've no way to know and I seriously doubt it.  In 7 months, I have never received anything from her in writing.  I would like to be able to recoup a portion of the retainer, if possible, so that I can apply it to the new attorney's retainer.

Additional word on the street is that this attorney has well known substance abuse issues, and although I didn't believe it at first, from what I've experienced I'm no longer doubting it.    I realize that it is pure conjecture, however I now believe that the OC knows I have an incompetent attorney, and that this, coupled with the fact that I am 800miles away, is what has caused this lawsuit to continue well beyond reasonability.  

I have documented every event ad nauseum, and feel that I have a strong case to dispute any charges beyond the retainer amount, possibly even a portion of the retainer amount.  I have no desire to take anything from her that she has rightfully earned... I have no idea how to proceed.  Perhaps I should just move on and cut my losses... any advice you have will be followed word for word.

1)  Should I request that she send me a final bill?

2)  Should I tell her up front that I plan to dispute all past and future  charges, or should I get a bill first and THEN inform her of the dispute?

[socrateaser]

>1)  Should I request that she send me a final bill?

No. You're gonna send her a final bill.

>
>2)  Should I tell her up front that I plan to dispute all past
>and future  charges, or should I get a bill first and THEN
>inform her of the dispute?

First, let's be clear that a "retainer" is a fee paid to reserve an attorney's time. An "advance" is a fee paid as security against expected future billing.

A retainer is non-refundable, because it's not paying for future services rendered -- it's paid to get the exclusive attention of the attorney.

The good news is that unless the attorney sent you ongoing bills for additional fees, clearly demonstrating that the retainer was never intended to be an advance, then no court will presume that your advance was actually a retainer.

But, since almost everyone in the biz uses the terms advance and retainer interchangably, forewarned is forearmed, and you need to stop using the word retainer before someone believes that you paid one.

Now then, I suggest that you work out a spreadsheet and determine if any of your $1,000 was actually earned by the attorney. It would be difficult to imagine that the attorney did nothing, and if she did, then even if she did it badly, she's entitled to be paid for it.

The key here is that an attorney's fees must be reasonable, in view of the attorney's skill and experience, the time required, the novelty of the issues, and the prevailing fees charged by other similarly situated attorneys. Unreasonable fees are...unreasonable, and you are entitled to a refund.

So, if the attorney did nothing, then you're entitled to your money back. If the attorney did something badly, then you have a case for malpractice because of the injury suffered. But, that doesn't get you a refund for the services badly rendered. It just gets you compensated for the damage caused, which may include your out-of-pocket expenses in having another attorney clean up the mess.

If you decide that some portion of the money paid was not earned, then you send a statement to the attorney clearly detailing all of the time that you believe was earned and that which was not, and then you tell the attorney that in view of the fact that you were never billed for ANY hours, that you are entitled to a refund on the remainder (or the whole, depending on your calculations). And, you state that if she disagrees with your calculations, that you demand that she segregate all disputed funds in her client trust account until such time as the two of you either reacch a settlement or the matter is resolved by the court or an arbitrator.

And, you expect an immediate accounting for all funds specifically identifying their location and amount.

At this point, the attorney will KNOW that you have discussed this matter with some other lawyer, because of the way you are phrasing your letter, and she will probably not contact you again.

You will need to "retain" (lol) an attorney to sue this attorney for malpractice and you will need to file a complaint with the state bar or other state regulatory agency over attorneys in the jurisdiction.

It ain't easy to get your money back, but it is definitely possible, and if this attorney is actually having substance abuse problems then the regulatory agency needs to know so it can take steps to protect other clients from harm.

[Hazel]

>It ain't easy to get your money back, but it is definitely
>possible, and if this attorney is actually having substance
>abuse problems then the regulatory agency needs to know so it
>can take steps to protect other clients from harm.

This is actually what concerns me the most, rather than the money issue.  Thank you for your very thoughtful and comprehensive response.  I will do everything you suggested.

[Hazel]

What type of evidence is necessary to prove malpractice against an attorney?

[socrateaser]

>What type of evidence is necessary to prove malpractice
>against an attorney?

There are actually three different legal theories on which an attorney may be liable to a client: (1) professional negligence (malpractice); (2) breach of fiduciary; (3) breach of contract.

Among the ways the attorney can be held liable for all of the above is by demonstrating that, but for the attorney's failure to be prompt, prepared and through, and to diligently represent your interests, caused you to obtain a less favorable outcome, or to expend more resources than would have otherwise occured.

Exactly what sort of proof depends on the exact facts of what occured during the representation. You basically allege that the attorney was a no show for most of the case. If you can prove it, perhaps via the court record of appearances, then that would satisfy the burden of proof, which only requires that you prove that it is more likely than not that the attorney's failure occured and that the failure was material, i.e., that it was the actual cause of your damages, and that such damage was reasonably foreseeable in advance.

Prove all that, and you get your money back. Or, just tell the attorney that you think her actions fall way below the standard of care owed by an attorney to a client and that if you don't get your money back that you will be forced to seek legal relief, including complaining to the attorney regulatory agency in your jurisdiction (state bar, supreme court, whatever).

If the attorney values her license, she'll probably just give you the money back, rather than risk being charged with an ethics violation. This assumes that her actions were so clearly and provably wrongful that the state bar will suspend or disbar your attorney.

However, whatever you do, don't just say, "Give me my money back or I will complain to the state bar," because that would be extortion. You must make your request based on your belief that you have been injured by the attorneys acts and that you are entitled to recover for those injuries -- the complaint to the bar is just tossed in as the umpf to get the attorney's attention. That's not extortionate, whereas a pure "do this or I'll do that," is.

[Hazel]

Gotcha, and thanks again.  I think I can easily outline at least 4 (probably more) instances where her actions/inactions were harmful to my case.

She did go to court for me each time she was required to do so.  That is actually ALL she did for me.  

A contempt charge was filed in January against me, and to date she has never filed a response to the court.  Many promises were made, i.e. "Yes, I've got to get that response done and you'll have it in a few days...", but it never happened.

 I am 800 miles away, and whenever this attorney attended court on my behalf it was always more than one week and several unanswered phone calls later that I finally got the news of what happened in court.   I got wise early on (from this site) and started documenting every call I made along with the very few calls that were actually returned.

I am not a high maintenance client by any means.  In fact, the first time she appeared in court for me (February) I allowed two weeks to go by before I finally called her office and insisted to be told what in the heck had happened in court.  I fully realize that I am not her only client, but I did feel that the amount of time I was kept in the dark was unreasonable.

I have a letter from the attorney to the opposing counsel (this is the only written thing I've ever received since hiring her, back in January) in response to a letter sent by the OC, and the response letter was 28 days after the OC's letter.  (The OC's letter indicated intent to pursue the matter, [which should have been well dead] along with a suggestion for negotiation, and I was never made aware of either of these things.)  In the 28 day period, I called the attorney at least eight times to find out what was going on, and never received a return phone call.

In the meantime, in the 28 days that passed my daughter became ineligable for coverage under my work's health insurance.  (Long story there, but if you need it I can provide it.)  This event provided new steam for the opposing counsel.

The latest episode was that the attorney's assistant called me today to tell me that she had a letter to mail to me but that the attorney wanted her to call and read it to me before mailing it.  (There was a court date on 7/11, and in spite of multiple attempts on my behalf to find out what happened she did not answer my calls)  The letter stated that because my daughter DID meet the 2.0 GPA requirement I am still responsible for paying for Fall '06 semester.

The tuition payment is due tomorrow, which I'm sure is why the assistant was instructed to read the letter to me prior to putting it in the mail today.

Fact is, my daughter DIDN'T meet the 2.0GPA requirement, and my attorney stood in court on 7/11 and said nothing, although I'd faxed a grade report to her TWO MONTHS EARLIER!  Once I re-faxed the grade documents, she admitted to me on the phone that she walked into court completely unaware of the actual GPA, which lead the judge to rule as he did.

I fully believe that the OC is aware of the screwball attorney I have and that this has resulted in motion upon motion.

As of yesterday I have retained a new attorney to go forward with this, but I do think that sufficient damage has been done and that I may have a case against my former attorney.

1)  Do you advise that I send my former attorney the facts/evidence that I have, stating that I would like a refund (basically outling the case against her)?

2) If I do this, is it acceptable (not extortionate) to state that:  "If I do not receive a written response from you by 8/15/06 I will be forced to take further legal action"?  - Because given her history she will not respond.

3) Should I just let the new attorney handle all of this?  I don't want to scare him off.


Thanks again SO MUCH.

[socrateaser]

>1)  Do you advise that I send my former attorney the
>facts/evidence that I have, stating that I would like a refund
>(basically outling the case against her)?

You could do that -- I wouldn't give away the store -- I'd simply state that I am unhappy with the services rendered and that I want to place my entire "advance" in dispute until we can reach a resolution of the dispute.

>
>2) If I do this, is it acceptable (not extortionate) to state
>that:  "If I do not receive a written response from you by
>8/15/06 I will be forced to take further legal action"?  -
>Because given her history she will not respond.

Yes, that's acceptable.

>
>3) Should I just let the new attorney handle all of this?  I
>don't want to scare him off.

I can't advise. Most attorneys will not sue another attorney. That takes a certain level of chutzpa, because attorneys who sue attorneys are basically hated by the entire legal community.