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Mad About Lawyers -- and What Can You Do About It?
Adapted from "Mad at Your Lawyer,"
by California malpractice attorney Tanya Starnes, new from Nolo Press.
Copyright © 1993 Nolo Press
When faced with a legal problem -- a serious one such as a big lawsuit, or a more mundane one such as getting a will drafted -- lots of people hire lawyers, expecting diligent and professional work for their money.
Lots of people are disappointed. According to their clients, it's common for lawyers to:
- not return phone calls or answer letters
- forget to attend a deposition or court hearing, leaving clients feeling scared and abandoned
- turn out to be a close friend of the opposing lawyer -- or worse, the opposing party
- send a bill for far more than the client agreed to or believes the lawyer is fairly entitled to
- do incompetent work.
Thousands of clients each year file complaints with state bar associations or sue their lawyers -- and they represent just the tip of the iceberg of dissatisfaction. According to a survey by Consumer Reports magazine (Feb. 1996), about 25% of all people who hire lawyers to handle adversarial matters are at least somewhat dissatisfied with their lawyer's work.
You may feel angry at your lawyer, but you don't have to feel helpless. There are ways to fix or get out of a bad relationship with a lawyer. These articles discuss what you should expect from your lawyer, and outline strategies for confronting your lawyer or getting help from someone else.
Why People Tell Lawyer Jokes
Here are some of the reasons so many clients are so unhappy with their lawyers.
|% Dissatisfied in|
|Lawyer didn't expedite the resolution of the case. ||32 ||13|
|Lawyer didn't keep the client informed. ||27 ||12|
|Lawyer overcharged. ||27 ||13|
|Lawyer didn't protect the client's rights and financial interests. ||25 ||9|
|Lawyer didn't promptly return phone calls. ||22 ||8|
|Lawyer didn't pay adequate attention to the case. ||21 ||7|
|Lawyer didn't disclose costs up front. ||20 ||12|
|Lawyer didn't explain how long process might take. ||15 ||6|
|Lawyer didn't accurately predict outcome. ||15 ||3|
Source: Consumer Reports magazine, Feb. 1996
What to Do When You're Mad at Your Lawyer
You've steamed, you've muttered, you've yelled. Now what? Here are some strategies designed to get results in some common situations.
The Lawyer Won't Communicate
This distressingly common problem doesn't have an easy solution. A lawyer who doesn't return phone calls or communicate with you for an extended period of time may be guilty of "abandoning" you--a violation of attorneys' ethical obligations. But that's for a bar association to determine (if you register a complaint), and it won't do you much good.
If your lawyer doesn't seem to be working on your case, sending a polite but firm letter laying out your concerns should get your lawyer's attention. Don't threaten to file a malpractice lawsuit or complain to the bar association; such threats will probably make your lawyer angry and defensive, not attentive.
If your lawyer does not respond, or subsequent meetings or conversations are not fruitful, consider suggesting mediation to work on your communication problems if you still want this lawyer to represent you. A bad "deskside" manner doesn't mean that the lawyer isn't an excellent lawyer, and it can be difficult to find a new one in the middle of a case.
If you conclude that you simply can't work with your lawyer anymore, fire your lawyer and find someone new.
You may also want to have a second lawyer evaluate your first lawyer's actions and advise you about paying (or refusing to pay) any bill you receive, filing a complaint with your state lawyer discipline agency or suing the lawyer for malpractice.
The Lawyer Is Dishonest or Totally Incompetent
If your lawyer has actually stolen from you, or acted with gross incompetence, the authorities in charge of disciplining lawyers in your state should show some interest.
File a complaint with your state's lawyer discipline agency.
Every state has an agency responsible for licensing and disciplining lawyers. In most states, it's the bar association; in others, the state Supreme Court.
The agency is most likely to take action if your lawyer has failed to pay you money that you won in a settlement or lawsuit, made some egregious error such as failing to show up in court, didn't do legal work you paid for, commmitted a crime, or has a drug or alcohol abuse problem.
Unfortunately, these state agencies are famous for moving at a slow pace, not pursuing complaints vigorously, and communicating poorly with people who file complaints. Still, it is important to report a legal skunk. Many agencies wait until they have several similar complaints about a particular attorney before taking action.
These agencies are primarily concerned with punishing lawyers (though rarely severely), not compensating clients. But all states except Maine, New Mexico and Tennessee do have funds from which they may reimburse clients whose attorneys stole from them.
You're Concerned About the Lawyer's Work
It's often hard for a client to know whether or not a lawyer is doing a good job. But if you think your lawyer's ability leaves something to be desired, do all you can to find out--before it's too late.
If your lawyer doesn't seem to be working on your case, talk to your lawyer and explain your concerns. If you still can't find out what has (and has not) been done, you need to get hold of your file. You can read it in your lawyer's office, or ask your lawyer to send you copies of everything--all correspondence and everything filed with the court or recorded with a government agency. If you're not satified with your lawyer's strategy decisions or with the arguments the lawyer has been making on your behalf, you may even want to go to the law library and do some reading to educate yourself about your legal problem.
If you've already ended your relationship with the lawyer, you need your file pronto to make sure all deadlines are met, mistakes are repaired and the matter keeps moving. If the lawyer is unresponsive and the matter involves a lawsuit, go to the courthouse and look at your case file, which contains all the papers that have actually been filed with the court.
If you've hired a new lawyer, ask her for help in getting your file. Also, ask your state bar association for assistance. If that doesn't work, as a last resort you may need to sue your lawyer in small claims court, asking the court for money to compensate you for what you've spent on redoing work in the file or trying to get the file.
Get a second opinion.
If you've got serious doubts about how your case is being handled, see a second attorney. Second opinions are relatively inexpensive--an hour or two of a lawyer's time spent talking to you plus any time spent reviewing papers.
And they are often very valuable in helping you decide whether to stay with your current lawyer or change to someone better suited to the task.
The more you can tell and show the second lawyer about your case, the better advice you will get about whether your case is being handled correctly and what might be done differently. Keep in mind, though, that no two lawyers handle a case in exactly the same way, and that a second opinion is usually a cursory review, not a comprehensive analysis.
Fire your lawyer.
It's your absolute right to fire your lawyer at any time for any reason. Give it serious consideration if you're convinced the lawyer is doing a bad job or if your relationship with the lawyer has become intolerable.
Dumping a bad lawyer can be expensive. If you hire a new lawyer, you'll have to pay him or her to get up to speed on your case. If the first lawyer hasn't done much, this shouldn't cost a lot. But if you have a trial scheduled for three weeks from now, your new lawyer will have a monumental and time-consuming job.
Sue for malpractice.
If you lost money because of the way your lawyer handled your case, consider suing for malpractice. Know, however, that it is not an easy task. You must prove two things: that your lawyer messed up, and that you would have won your case otherwise. It's not enough to show that your lawyer made a mistake--you must show that the mistake caused you financial loss that you would not have suffered if your lawyer had handled your case properly in the first place.
If you want to sue for legal malpractice, do it as quickly as possible. A common defense raised by attorneys sued for malpractice is that the client waited too long to sue. And because this area of the law can be surprisingly complicated and confusing, there's often plenty of room for argument.
Legal malpractice cases are expensive to pursue, so do some investigating before you dive in. There's no point in suing if the lawyer doesn't have either malpractice insurance or valuable assets from which to pay you if you win.
You're Upset About a Bill
Lawyers often send bills that consist of not much more than a notation like this: "32 hours @ $150/ hour = $4,800 now due." You deserve better--and should demand it.
Scrutinize your bill.
Spend some time closely examining a lawyer's bill. Compare your fee agreement to any itemized bill (lawyers sometimes call these "accountings") your lawyer gives you. If your lawyer doesn't give you an itemized bill, ask for one. If you are paying by the hour, make sure your lawyer is charging you as agreed. Because your lawyer wrote your fee agreement, insist that ambiguities be resolved in your favor.
Don't pay all or part of your bill.
You may not have to pay a lawyer who quits representing you on the eve of trial, violates ethical rules or charges you fees considered "unconscionable" (outrageous). If your lawyer charged you for the time of two lawyers who did the same thing, or charged for compulsively and unnecessarily organizing files, insist that the bill be reduced to a reasonable sum. And never be afraid to ask about questionable or unclear charges; the lawyer may offer to reduce the bill.
If you just can't work out some-thing with the lawyer, consider going to arbitration. Most states have voluntary fee arbitration programs, which allow either a lawyer or a client to suggest arbitration.
You may, in fact, be required to turn to arbitration. In some states, arbitration is required for most fee disputes between lawyers and clients: Alaska, California, Maine, New Jersey, South Carolina and Wyoming. In New Jersey, attorneys must submit fee disputes to arbitration, although clients have the option of taking complaints directly to court.
In many states, however, it is not legal for a fee agreement to contain a mandatory fee arbitration clause. This is because your attorney, your professional adviser, is ethically prohibited from presenting you with an agreement in which you give up your right to sue the attorney in court. Despite this fact, lawyers are increasingly inserting mandatory arbitration clauses in their agreements. They argue with some plausibility that because arbitration is usually cheaper, faster and easier than a civil court trial, it's in everyone's best interest.
Arbitration can be binding or nonbinding. Binding arbitration means you and you lawyer are bound by the arbitration decision—neither of you can appeal. An arbitration clause in an attorney-client fee agreement usually calls for binding arbitration. In it, you give up the right to sue in court and have your case decided by a jury. In exchange you will get a quick, final result.
Nonbinding arbitration means that either side can reject the arbitrator's decision and file (or continue with) a lawsuit. Arbitration by a local or state bar's fee arbitration panel is usually nonbinding. Beware that in some states, a nonbinding arbitration award often becomes binding and final if you fail to reject the decision within about 10 to 30 days. In other states, by contrast, you need to take steps to make a nonbinding award binding. For example, you may be required to file a copy of the arbitration decision with a local court.
Unless binding arbitration is required under your agreement or state law, you are usually best proceeding with nonbinding arbitration. This will give you an opportunity to organize your case and have a practice run before the matter reaches court. And there is always a chance that you and the lawyer will either settle the matter during the process or accept the arbitrator's award.
The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission.
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