Archive for ‘Tales of Bad Lawyers’

Ethics Complaint – The End

By htsyl, 18 September, 2010, No Comment

Well, I am not at all surprised that despite the allegations set forth in the ethics complaint I filed against an attorney who let a client he snared from a women’s shelter work for him for four years without pay has been DISMISSED by the powers that be. This is the body of the letter:

The Office of Bar Counsel has considered your grievance regarding Attorney X. After reviewing the information received and communicating with Jane, Attorney X’s former client, it has been determined that any professional misconduct in this matter could not be proved by “clear and convincing evidence,” which is the standard of proof required in disciplinary cases…Accordingly, the grievance has been dismissed and, as such, this matter is closed. The decision by our office, however, does not affect any private remedies that might be available to you…Thank you for bringing this matter to the attention of this office.

And that, my friends, is that. I have encouraged my friend to continue following up with the Labor Board regarding her back wages as this is a “private remedy” that is available to her and which could put some money in her pocket (unless Attorney X declares bankruptcy). Even if she wanted to retain an attorney to sue Attorney X for malpractice, Attorney X does not carry malpractice insurance! It is highly unlikely that she could even find a lawyer willing to take on Attorney X in a lawsuit, but even if there was a lawyer who practiced in this area, taking a case where there is no insurance policy to go after is a loser.

So, unless the Labor Board catches up with him, and he has to pay Jane some back wages (at the rate of minimum wage because there was no agreement as to what her hourly rate of pay should have been), Attorney X has got a pretty good setup. He gets clients referred to him by the women’s shelter. If they can’t pay for his services and they have any skills at all, he has slave labor at his disposal. He can’t get sued for malpractice because he doesn’t carry insurance and he can’t get disbarred because it’s “too hard to prove.”

Frankly, my impression of the position taken by the disciplinary board is this — if they think they can get away with not pursuing the matter, and if the victim is low profile enough, and the attorney hasn’t done something “outrageous” like stealing client monies from the trust fund, they just put it in the “lack of clear and convincing evidence” shoebox, knowing that the person will have nowhere to turn for a “private” or “civil” remedy, and it’s just over.

It’s just wrong.

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Adding Insult to Injury – Paying the Other Guy’s Legal Fees

By htsyl, 3 April, 2010, 1 Comment

Here is a situation that nobody wants to find themselves in. Your lawyer takes your case to trial and at the end, you are ordered by the Court to pay the attorney fees for the opposing side…you don’t have to pay just your own lawyer, but you have to pay the other side’s lawyer, too! If your lawyer doesn’t tell you that this is one of the risks of taking a case all the way to trial in a courtroom, then they have not been completely forthcoming with you. No attorney is allowed to guarantee results…so just because they tell you that you “have a good case” doesn’t mean you will prevail in the end. The outcome will depend on many factors, not the least of which is how competent and prepared your attorney is.

Consider this situation. Mr. Jones retains Attorney Y to represent him in a real estate matter. The facts are relatively complex and it appears that the matter cannot be resolved without a trial. Attorney Y is charging Mr. Jones by the hour to work on the case. Mr. Jones forks over $25-30,000 in fees to his lawyer. The issue ends up at trial and from the outset, Mr. Jones can see that his attorney is not prepared. Because of the lack of preparation and the strength of the opposition’s case in court, Mr. Jones loses. This is bad enough. He has paid out thousands of dollars to his attorney and has lost money in the real estate deal. After the trial is over, the opposing side makes a motion to the court for attorney fees, and the judge orders Mr. Jones to pay the winner’s attorney fees, nearly $50,000.00! Mr. Jones then consults an attorney to sue Attorney Y for legal malpractice, which could be a very tricky business.

This can happen even if you WIN! How? In a recent case, which will be heard by the United States Supreme Court in Fall 2010, the father of a Marine who died in Ira  sued the Westboro Baptist Church for emotional distress. Members of this controversial Kansas “church” had picketed the son’s military funeral with antigay messages of hate. The father sued and won a judgment against Westboro Baptist Church for $5 million…good news, right? The church appealed, and the appeals court ordered the father to pay $16,000 in attorney fees to the church, even though the matter is on appeal and has been accepted by the Supreme Court for hearing. Read the whole story here.

Moral of this story? Getting involved in a legal dispute is fraught with all kinds of risk — emotional and monetary. Your lawyer should warn you of all of the pros and cons of proceeding. But, buyer beware, your lawyer is not assuming the risk — you are.

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Mediation – Arbitration – Settlement

By htsyl, 6 March, 2010, 1 Comment

Mediation is a process used to settle legal disputes. It is most frequently used as a settlement technique in family law (divorce and custody) and personal injury (e.g., auto accidents and medical malpractice). In family law, many court systems have made mediation mandatory in divorce cases in an attempt to cut down on protracted courtroom battles.

I am going to talk today more about the mediation process in personal injury cases. Your lawyer may also describe mediation as a “settlement conference” or “arbitration.” At a mediation (which may take a full day), both sides are present and there is an independent mediator, or arbitrator, who charges a fee for their time. The two parties have to agree on the who the mediator will be, which makes sense, because if one side or the other is unwilling or unable to work with a particular person, the process will be meaningless. Mediators have different styles and techniques, and your attorney may prefer a particular person as the mediator in your case, and might even recommend waiting for that particular person to be available if their schedule is full.

You might think that everyone sits down in one room together and tries to work things out. In a traditional mediation, this is not what happens. Each side (the clients and their attorneys) is set up in a separate room. The mediator then talks to each side and moves back and forth between the parties to try to reach a settlement. The mediator will have been paid to review the paperwork in the case prior to the day of mediation, and may have requested that each side provide a written summary of their case. Because this can be a somewhat expensive process, mediations of this type are most frequently used in cases that are “worth” more money. In other words, you won’t have a mediation to argue over $20,000 because it would not be a wise financial investment to pay a third party to do that.

So, you are thinking, why is this discussion in a blog about “bad lawyers”? Here are a few things that we will talk about later — what is the reason for scheduling the mediation (do you feel like your lawyer is pushing you into this) — has your lawyer talked to you about how to manage your money if you may be receiving a large settlement (or annuity) — are you physically up to the task of sitting through a day or more of negotiations (when you may still be on pain medications or in pain from your injuries)? Discussion about this to follow soon, along with some new “Tales of Bad Lawyers” to illustrate.

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