Archive for December, 2009

Public Mistrusts Lawyers As Much As Ever

By htsyl, 28 December, 2009, No Comment

According to a recent publication by the Center for Professional Responsibility of the American Bar Association, the public mistrusts lawyers as much as ever, especially when it comes to value and efficiency. In other words, we think lawyers cost a lot of money and that they spend a lot of time running up our bill without producing much in the way of results. A Gallup poll in 2008 found that only 18 percent of the people surveyed would rate the honesty or ethical standards of lawyers as “high” or “very high.” Physicians, on the other hand, garnered a rating of 64 percent (also somewhat disappointing). Another survey found that 69 percent agreed that lawyers are more interested in making money than serving their clients, and 57 percent believe that  lawyers are more concerned with self-promotion than the best interests of their clients. This sort of begs the question of why any mother would want their son (or daughter) to grow up and be a lawyer!

I put these statistics out there not only as food for thought but also to answer my critics. My, I think thou dost protest too much!

Hopefully, the holidays have been pleasant for all of you and 2010 will bring positive outcomes. To the extent that your outcomes tend to the negative and that lawyers contribute to those outcomes, stay tuned.

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Ethics Complaints Against Lawyers

By htsyl, 18 December, 2009, No Comment

As we have discussed before, unethical behavior or professional misconduct is different than malpractice. When a lawyer is unethical or breaks the Rules of Professional Conduct, there may not be legal malpractice, with monetary damages that must accompany such a claim (Sue Your Lawyer – Two Lawsuits in One). Lawyers are licensed in the state where they practice, and ethics complaints, or grievances, are filed with the official body in their state that governs their license. In some cases this is a disciplinary arm of the state supreme court and in others it is a state bar association. The American Bar Association has put together a list of the contact information for the governing bodies that oversee attorneys in each state – ABA Directory of Lawyer Disciplinary Agencies. A link is also provided in the Help Yourself menu on the left side of this blog’s home page.

I actually filed a complaint against a lawyer with a state bar disciplinary board today. Because these matters are held in the strictest confidence, I cannot say where or against whom I made the complaint. I can say, however, that I was not the wronged party. The attorney in question did something I thought was unethical relative to a friend of mine. I wrote a letter, described the situation, and listed the Rules of Professional Conduct that I thought the attorney had broken. The American Bar Association publishes a document called the Model Rules of Professional Conduct. Most states adopt these rules, or some version of these rules, as their own.

The Rules of Professional Conduct are pretty straightforward and include things such as:

  • Competence – lawyers should not take on representation in areas of the law in which they are not competent
  • Diligence – lawyers need to pursue representation in a timely fashion and not let litigation languish in their offices or the courts
  • Communication – lawyers need to maintain open communication with their clients and keep clients advised of the progress of their legal matter
  • Fees – the fees that lawyers charge need to be fair (they never seem fair, but this is a market-driven standard of the community the lawyer practices in)
  • Conflict of Interest – this one is complicated, and often breached, but in the simplest of terms means that a lawyer cannot represent someone when he already represents someone else whose interest in the same legal matter is adverse to the new client

This is only the tip of the iceberg, but starts the discussion about ethics that will be ongoing. I also wanted to brag a little about filing the complaint because it was a personal and moral obligation that I felt I had to a friend. We’ll see what comes of it.

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Contingency Fees – What You Need to Know

By htsyl, 17 December, 2009, No Comment

We have all heard of contingency fees – Personal Injury attorneys advertise and say “We Don’t Get Paid Until You Get Paid” — they are talking about Contingency Fees. When you hire an attorney to represent you for “injuries you suffer in a car accident that wasn’t your fault,” you will enter into a Contingency Fee Agreement with the attorney. The basic agreement is that you don’t have to pay the attorney any money up front. When your case is resolved, the attorney will take a percentage of the money right off the top. A common contingency fee is 30 percent, but you see them higher and lower. Lawyers who advertise frequently get into “bidding wars,” stating that they charge a lower percentage  and you will end up with more money. Buyer Beware!

Read the fine print. An example is an attorney who advertises on television that he charges a low 20 percent contingency fee in personal injury cases. However, when you meet with the attorney, the real arrangement is something quite different. Yes, there is a 20 percent clause in the agreement — if the case is settled with the insurance company within one week. The fee then goes up to 25 percent for the balance of the first month. Then, if a lawsuit is filed with the court, it jumps up again, to 30 percent. Once again, Don’t Check Your Common Sense At The Door. Remember, 20 percent of a quick, low-ball settlement may not be very much.

Although you are not paying up front, the percentage is not the only money you will owe. In addition to taking the fee off the top, the attorney will charge you for “costs.” These are the expenses incurred by the attorney while representing you. These can include court filing fees, photocopy charges, fax machine charges, fees paid to medical experts to review and summarize your medical records, etc. You should know how these charges will be calculated because they can add up without your realizing it.

You also may have “liens” on your case by medical care providers. These can be physicians, chiropractors, radiologists and other medical professionals who agree to wait for payment until your case is resolved. It seems nice to get medical care without paying up front, but these medical bills will have to be paid out of your money before you get paid. If you are not careful, and if your attorney does not negotiate with your medical providers before paying them, what seems like a “big settlement” can seem pretty small when you get what’s left over after everyone else gets their cut. You may have insurance that will pay these medical bills, either through your regular medical insurance or your auto insurance policy — if you have insurance, you should use it.  You may have to pay back your medical insurance after all is said and done, but remember that insurance companies get big discounts from the providers, so this could save you money in the end.

Contingency fees are also the common practice in malpractice cases (against doctors, lawyers or other professionals). The costs incurred in these cases can be very high, especially when the lawyers have to hire expert witnesses. If your case is unsuccessful (i.e., you actually lose in a trial) or cannot be settled out of court for enough money, you could become personally liable for the costs incurred by the attorney. Just because the attorney agreed to wait to get paid for the expenses, they have not agreed never to get paid if you lose. I have seen situations where attorneys actually obtain judgments against former clients for payment of the costs in their case! Not a pretty picture, but it happens.

When your case is resolved by the attorney and the money is received from the insurance company, you should be provided with a written accounting of exactly where every penny is going. The bottom line is the amount of money that you will be getting. Be sure you know what that bottom line is going to be before you agree to a settlement. There is no going back.

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