Legal Question in Legal Ethics in California
Scenario:
John and Mary are going through a divorce, each has a personal attorney. After 2 years with no progress, except for excessive demands from Mary's lawyer to which John has voluntarily accommodated to avoid further delay, Mary's lawyer withdrew from the case for unspecified reasons.
Prior to this, multiple court dates had been cancelled and rescheduled at the request of Mary's attorney. Johns lawyer did not consult John prior to any of these postponements. Nor did he a give John the courtesy of adjusting his schedule, or even denying the request for change. �Johns lawyer provided no explanations, but only emailed John with new court dates.�
Shortly after the withdrawal of Mary's attorney, she paid a personal visit to John's lawyer and tearfully pleaded with him to convince John to settle the divorce out of court as she could not afford a new attorney. Since that visit Mary continues frequent communication with John's lawyer personally, via telephone and email, requesting confidential information about the case, to which she is provided.
A recent call to John �from his attorney resulted in his lawyer asking him to consider mediation with Mary. John denied the request due to Marys difficult and calculating behavior displayed so far through the course of the case. She has been, up to this point, unreasonable, combative and dishonest in court. John feels his decision is justified. Johns attorney, on the other hand is displeased with this decision. This case, which was almost at it's conclusion, suddenly requires additional attention, court dates and paperwork. Obviously these services require additional fees, yet the fees to date have completely exhausted John's available funds.
John has paid his attorney more than $8,000.00 since this case began, and there has been no progression. �He continues to receive new invoices for fees sometimes several times a month. His most recent bill, in excess of $3,000.00, included charges for each time Mary had made communication with John's �lawyer.
John's attempt to dispute these fees resulted in his lawyer requesting payment in full, stating that unless John comply with this demand for payment, his attorney would not be obligated to provided any additional services or represent him further.
Is this legal malpractice?�
Conflict of interest?
Failure to provide honest representation ?
Disclosing of confidential information?
Excessive and improper billing?
Would you advise firing this attorney or simply filing a complaint with the State Bar Association? Is there a way to have this case investigated for Legal Malpractice that won't require John to pay additional fees? If ruled in John's favor, will all fees be refunded to him? How will this case progress if a new attorney is required? Must John start over from the beginning with a new lawyer? Can John's current attorney quit the case or retaliate in some way if he realizes thatJohn has filed a complaint?
Please advise.
2 Answers from Attorneys
To be completely honest with you, you really have some significant misunderstandings about the attorney client relationship and the obligations of your attorney. On the other hand, it is your attorney's fault for not guiding you through this process and explaining things to you, so that you would understand and not be so obviously distressed about this situation and all these things you talk about in your question, which really are mostly entirely normal and appropriate. The bottom line, though, is that you have not described anything that even remotely approaches malpractice or a violation of any rules governing lawyer conduct that would invoke action by the State Bar. If you think you have been overcharged, you can demand fee arbitration through your County Bar Association. If the arbitrator agrees, then some of your fees will be refunded. Since your lawyer has done genuine work for you, however, it is certain that you will not get all your fees back. If you hire a new attorney, they will not start over; they will pick things up right where they are. There will, however, be some extra time and expense for the new attorney to "get up to speed." If you do file a State Bar complaint, your current attorney not only can but in most cases must quit. An attorney cannot continue to represent a client when he is an adverse party to that client in another proceeding. Lastly, I STRONGLY recommend that you reconsider your refusal to mediate. The reasons you cite for refusing to mediate are all really reasons you SHOULD mediate. Mediation cuts all the court lies and expenses and combativeness out of the process. If a party tries to play those kinds of games in mediation, the mediator will either put a stop to them or send you back to waste time and money in court. She would be throwing away her share of the mediator's fees if she approached mediation the way she approached the court process. That is what we divorce mediators do - cut through the adversarial BS and cut to the chase to get the divorce done. Please fee free to call me if you would like to discuss your situation further. I can tell you are obviously really upset. I think it would help you a great deal just talking to someone who understands all this and can help you understand things and make more informed and less angry decisions about where to go from here.
I would really suggest mediation, because that is what the court wants. If Mary and Mary's attorney really cause a lot of delays, then your lawyer should have sought sanctions for the delays under Family Code section 271.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
