Author Topic: Feeling pretty raw from treatment from my own attorney  (Read 2362 times)

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beaktl

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Feeling pretty raw from treatment from my own attorney
« on: September 21, 2016 02:26:35 AM »
I've heard all the attorney jokes and I know there is a certain level of you just have to deal with but it seems like my attorney went way over the line on some of these but wanted to get some other opinions to make sure it was worth pursuing any action.  I'm pretty sure none of this is actual malpractice since it didn't affect the actual outcome but I think there is at least a bar complaint and maybe even a FDCPA violation or two.  Please let me know what you think:

The main thing is that in January of this year a trial date was set for March.  He did not notify me (However he did immediately demand full, immediate payment of all his fees offering to withdraw but did NOT mention the trial date), the trial was held, I'm pretty sure he didn't even show up and a $50k plus interest judgment was awarded, again he did not inform me.  Over the summer I thought we were just trying to negotiate a settlement.  He never mentioned they already had the judgment and kept assuring me he was "so good" and I was so broke we would get a settlement for around $5k.  But then in August my bank card gets declined and I found out my bank account has been frozen.  There had been a receiver hearing set and held in August and a receiver appointed (adding on $500 plus 25% collection costs).  He of course never told me about that either, I found out from my bank.  They were able to grab just under $1000 zeroing my account a week and a half before next payday.  If he would have just told me about the judgment I would have been smart enough to not leave ANY cash in the bank, switch banks, etc.  There are also several decisions I would have made differently had I know a judgment was awarded, including some property acquisitions.  Like I said there's not a lot I can say about the actual judgment, but the main issue is the fact that he never told me.  When I asked him about it he was of course very evasive and claimed to have mailed me a copy of the judgment and "wondered why you didn't call me after I mailed it"  No answer to "if you wondered, why the didn't you call me??"  anyway....

Here are a few other things that seem over the line or at least questionable.

- I repeatedly asked him it would just be better to file bankruptcy, he always said no but now that we're at this point he claims he can't answer any bk related question, not his area, call a bk attorney.  So how can he advise me that it's not a better option when he supposedly doesn't know anything about it?  Also, he's justifying what happened on the fact that it was an unwinnable case anyway, so again, why not bk??

- He made two threats via email that may have been FDCPA violations.  In one he said that if I didn't pay he'd file suit in a way that would not be dischargeable by bankruptcy.  I haven't found a way for him to do that and my understanding is that a creditor can't threaten something they can't legally do.  The other time is a little different ... he threatened to withdraw if I didn't pay and we "both know that will be a death sentence to your case" that one would probably just be blown off as puffery or something like that but seems a bit extreme.

- He has never sent me a single bill, invoice, explanation of charges etc.  Just emails and calls for "more money"  I was probably the idiot here, the only agreement I had was the typical retainer/ dollar per hour agreement.  A few odd things though, his fees are double what was awarded to the plaintiff in the judgment.  The first time he said more money, it was already three times the original retainer.  I was under the impression that if he used up the retainer I was to replenish it so I'd at least have some idea of how expenses were racking up.  I would love to have some basis for getting a refund of my fees since he provided no real value and I ended up with the default judgment I would have had in the beginning but at least I would have know it was coming.

- In January, when he demanded payment in full, he actually started by notifying me that he was withdrawing representation and needed to know if I objected, he kept pressing that objection part, I got the impression it was a technicality.  Anyway at the same time he sent an email telling me that I had a mediation appointment the following Monday (this was on a Friday) and gave me the mediators contact information so I could reach out to him and handle it.  This was the first I had heard of the mediation session and not knowing what else to do I just sent the mediator and plaintiff attorney an email cancelling it due to my attorney leaving me unprepared.  We had previously turned down mediation because it was pointless, I had nothing to offer, but I found out that he later agreed to a mediation session without my consent.  I did find though that he at least kind of notified me.  The email confirmation of the session was buried under another non-related email he had sent me.  I would have had to read into the area that is normally just the copy of the replied to email.

If it helps, I'm in Texas.  This if for a vendor line of credit for an s corporation but I had signed a personal guarantee.

kevinmanheim

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #1 on: September 21, 2016 09:46:28 AM »
FDCPA doesn't apply to business debt.

File a bar complaint. Stick to the basic facts -- failed to issue billing statement, made unreasonable demands for payment, failed to show up for a court date, didn't keep you informed.

Bruno the JDB Killer

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #2 on: September 21, 2016 02:10:25 PM »
Failing to show for trial resulting in a loss is a slam dunk malpractice case. In most states, malpractice is very hard to do because it requires an expert witness to prove you would have won your case were it not for the lawyer's mistakes.

That does not apply when he just doesn't show up at all. Look for case law that says you do not need a witness for a no-show, and sue him yourself.

The sticking point may be the non-payment, but unless he actually withdrew from the case he may still be responsible. Courts don't like lawyers dumping a client for payment issues. He did not give you a proper fee agreement, either. He should have asked for a continuance while he worked out payment or gave you time to seek new counsel.

Most lawyers don't like to sue other lawyers because they are all buddies. A few will, but the case has to be for big money and they usually get 40%. Make SURE Bozo has liability insurance before you start this, you may end up with a judgment you can't collect.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #3 on: September 21, 2016 02:36:15 PM »
Go get a copy of the complete court file.

If he filed a withdrawal statement, you don't have a case.

Lawyers are just like business people.  There are good ones, and there are not-so-good ones. 

I'm of the belief that the number of the latter far outweighs the number of the former.


11181986

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #4 on: September 21, 2016 11:53:27 PM »
You may or may not have a legal malpractice claim, I'd like to see the Court file first to know.

You do not have FDCPA claims against him;

BUT

You have very good bar complaints against him.  Stick to the basics with the bar complaint.

Not informing you of Court dates and never sending you a copy of the judgment will likely be investigated.  Him never sending you a bill will likely be investigated as well.

Also, you may be able to claim he overcharged you (being that you never received a bill, you have no way of knowing without bar association intervention).  Also, his result in this case obviously sucked, so his fees may be able to get slashed.

conrusco

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #5 on: September 22, 2016 01:53:59 PM »
No disrespect for the OP but even if you are using an attorney you should be at least aware of the procedures, timelines, .possible outcomes of going to court. That is the purpose of this board to allow people to educate themselves before they jump into the black hole of the legal system.

Fighting with a practicing attorney when you didn't educate yourself on a debt collection case is a big hill to climb.

11181986

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #6 on: September 22, 2016 02:03:28 PM »
I disagree.  When a lay person hires an attorney, they are relying on that attorney to be their advocate and navigate the complicated court system for them.

Everyone has hired an attorney before and has done what the OP has done.  I have done it myself when I hired a estate litigation attorney in wrapping up a contested estate issue.  If I wanted to research the court procedures and Estates Powers & Trusts laws myself there would have been no need to hire the attorney.

beaktl

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #7 on: September 22, 2016 05:37:27 PM »
Everybody, thanks for all the replies and helpful information.  BTW I was able to confirm with the clerk that he did not show up for the trial and there is no record of any withdrawal activity.  He still shows as the attorney of record.  Oh and his verbal based balance was paid in full well before the trial date.

I'm not sure I understand the FDCPA part though.  I understand why it wouldn't apply to the collection of the debt that was the subject of the lawsuit, which clearly was business debt.  But I am listed personally as a defendant and then I hired him to represent me.  So is that still considered business debt?  Seems like if that's the case then attorney's are pretty much exempt across the board from FDCPA, not that it would surprise me.

Conrusco, the issue wasn't knowledge of how all this works.  It was basic communication.  Once he's listed as attorney of record EVERYTHING goes through him.  All notices from the court, communications from the plaintiff, etc.  I have no choice but to rely on him to pass on the important details.  The only part where I relied on his advice was in pursuing a settlement instead of bankruptcy.  I was asking because I knew it was a real possibility but he said based on his experience that we'd be able to get a settlement for less than 10% of what they were asking for.  He even claimed to have won a case against that same law firm.  So I was faced with my well researched, yet still amateur knowledge vs a practicing attorney seemed logical at the time to go with that.

Bruno the JDB Killer

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #8 on: September 22, 2016 05:55:01 PM »
The FDCPA covers "consumer" debt for personal or household use, not business use. The FDCPA covers attorneys who regularly engage in debt collection from others.  Your attorney is not collecting a debt from you on behalf of another party.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

11181986

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #9 on: September 22, 2016 06:28:44 PM »
If he straight didn't show up for a trial date, you have a better case of malpractice claim.  Again, most jurisdictions have a "but for" analysis which may hurt you in that claim - but now your bar complaint against him is much much stronger.

You can also see if he charged you for any trial preparation or any trial work.  If he did charge you for trial preparation and did not show up to the trial I would argue that you are entitled to a return of the fees he "earned" in preparing for the trial.

CleaningUp

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Re: Feeling pretty raw from treatment from my own attorney
« Reply #10 on: September 22, 2016 07:25:31 PM »
I'm thinkin' that OP's best tactic at this point is tell the bozo to sue him.  I'd be saving the bar complaint for later.

I might also think about a motion to reconsider based on the fact the the attorney of record for the defendant (OP) failed to show up and that as such, Defendant was deprived of his right to present his case from the court.  The motion would almost write itself and leave the "attorney of record" on the hook for explaining his behavior.


I have a sneaky he might just win on the Motion to Vacate/Reconsider, and there would be a strong case, at least, for an adjustment of the attorney's bill, for any counterclaim for fees that he might try to make.  It would also put the the behavior of the attorney-of-record's handling of this case in front of a judge, and given the scolding from the bench the he might get, bolster any complaint to the bar association.  Goodness, the judge might just sanction him, which would go the bar association anyway, and give the OP a crystal clear confirmation of bozo's malpractice.




 

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