Bad Attorney

[Zephyr]

Dear Socrateaser

State Wisconsin- all parties, and order

Last fall my attorney signed a proposed custody agreement without my knowledge. Prior to him recieving the document I had sent him a list of items that were very important to have included in the final order. The judge had also said that I should be given the opportunity to review and have input into the order.


For over a month and a half my attorney denied knowledge of the orders exsistence. Reviewing the paperwork I had been sent later, I found that he had signed the order, even though he had denied having it at the time. My order now is extremely vague and not working out.

There is more about this case that I am dissatisfied about- but this I can PROVE.

Questions:

I still owe the attorney $400, (out of thousands), do I continue to just pay it even though I was basically sold out?

Is this malpractice?

Does this give me an avenue to have the order modified?


Thank You very much.

[socrateaser]

>Questions:
>
>I still owe the attorney $400, (out of thousands), do I
>continue to just pay it even though I was basically sold out?

You can dispute all of the bills you've paid and any you owe. You must provide a reason for each line item you are invoiced for where you believe that the charge was unreasonable in view of the skill, learning, knowledge, experience, novelty of the issues, time required, reputation of attorney, market value of similar services, actual receipt of services, etc.

If your invoice was submitted more than 30 days ago, and you didn't challenge it, and paid, then it is presumed correct, but you could still challenge everything. You just need to make a convincing case.

>
>Is this malpractice?

You say that the attorney "signed" the order. In most jurisdictions, only a party can actualy sign (enter into) a stipulated/agreed order, because this is essentially a contractual agreement between parties that the court then orders. If your attorney were to sign such an order without your agreement, that would be fraud, because the attorney would have been inducing the court to order a stipulated agreement based on the misrepresentation that the client agreed to the stipulation.

However, if you mean that the attorney approved a court order as to form, which was previously ordered by the court, and then the prevailing party's counsel was directed to prepare an order that reflected the court's orders, that is entirely different,  because the only question is whether or not the order does reflect the court's intent. If it does, then the attorney can sign, and there's no malpractice. If the order does not comport with the court's instructions, then that may be malpractice (breach of the duty of due care and loyalty owed by an attorney to a client).

>
>Does this give me an avenue to have the order modified?

If the agreement was a fraud, then it can be set aside by the court, and you will be back to where there was no agreement.

If the agreement was merely incorrect because it didn't accurately represent the court's orders, then you can ask for a modification on grounds only on grounds that there has been a substantial change in circumstances affecting the child's best interests. The exception to this would be a clerical or obvious mistake or ambiguity, where you would seek clarification to have the court interpret and correct the orders to represent the court's original intent.

[Zephyr]

>>Questions:


>
>>
>>Is this malpractice?
>
>You say that the attorney "signed" the order. In most
>jurisdictions, only a party can actualy sign (enter into) a
>stipulated/agreed order, because this is essentially a
>contractual agreement between parties that the court then
>orders. If your attorney were to sign such an order without
>your agreement, that would be fraud, because the attorney
>would have been inducing the court to order a stipulated
>agreement based on the misrepresentation that the client
>agreed to the stipulation.
>
>However, if you mean that the attorney approved a court order
>as to form, which was previously ordered by the court, and
>then the prevailing party's counsel was directed to prepare an
>order that reflected the court's orders, that is entirely
>different,  because the only question is whether or not the
>order does reflect the court's intent. If it does, then the
>attorney can sign, and there's no malpractice. If the order
>does not comport with the court's instructions, then that may
>be malpractice (breach of the duty of due care and loyalty
>owed by an attorney to a client).
>



Thank you so much for your answer, the part I have quoted I am a bit
confused about though.

The judge directed that I be able to review and have input into the
order, but it was not a stipulated agreement. I was not given that opportunity by opposing counsel or my own.

My own attorney made no suggestions to the proposed order, just signed it and sent it back. Then told me later that opposing counsel had just sent the draft into the judge- as if he had never seen it.

I'm not sure that the order defies the intention of the court. It is
just vague and increasingly more problems are cropping up because of that.


Questions:

Is there a particular form for a motion for clarification, and what
exactly can be addressed using that type of motion?

Because of at least 7 instances of contempt under the vague order would you recommend filing the motion for clarification or the contempts with a motion to modify? what are the benefits pitfalls of one over the other?

Thank you again.

[socrateaser]

>Questions:
>
>Is there a particular form for a motion for clarification, and
>what
>exactly can be addressed using that type of motion?

Form is jurisdiction dependent. Anything in the order that needs clarification, for example: if the parties have joint legal and there's a battle over healthcare provider info, and the order can be improved by the court explaining the rights and responsibilities of the parites, then the order can be clarified.

If you have specific things you want clarified, describe them and I'll tell you fi it's appropriate or not.

>
>Because of at least 7 instances of contempt under the vague
>order would you recommend filing the motion for clarification
>or the contempts with a motion to modify? what are the
>benefits pitfalls of one over the other?

What you are describing is a non sequitur. There is "no" vague instance of contempt, because contempt requires proof beyond reasonable doubt that the defendant wilfully and with conscious disregard, violated a valid and enforceable court order. To get a contempt, you must first clarify the order to make it unambiguously clear what the other party's responsibilities are, unless the order is already unambiguous, and then you can get a contempt. But, not before, and no matter how compelling your proof, unless the order is clear as to what is expected of the party charged with the contempt(s).