Legal Question in Personal Injury in California

Hello,

My answers are below your questions:

Was my attorney allowed to make such an assumption or did they absolutely have to fully settle the lien with Kaiser before releasing all the funds?

- No. there is a statutory time during which the health care provider can pursue its lien rights. It cannot be modified just because someone, such as your attorney, decided to create a deadline on his own. I am surprised that an attorney was involved on the Kaiser side, especially considering the relatively small amount. Usually, their liens are handled by health care recoveries in Louisville, KY, and they are pretty reasonable, usually reducing their bill by 1/3 or so without much resistance.

2: Kaiser has now decided to after the lien, but my attorney refuses to represent me. Is this ethical and reason enough to complain to State Bar?

Your attorney does not have to represent you as that would be a separate action, but if it is determined that Kaiser is entitled to more than they were paid, both of you will be responsible for the payment. But, since your attorney took his percentage off the top, and that figure would not be any different regardless of how much would have been paid to Kaiser, it is your share only that will be affected.

3: When Kaiser had a lien on the settlement amount, did they have a lien on only the portion that was paid out to me, or the whole amount that included attorney's fee?

Kaiser had a lien on the entire amount, but as indicated in answer to question 2, it doesn't really matter.

Thanks,

Arkady Itkin

San Francisco & Sacramento Injury Lawyer

As to your questions:

1. The Kaiser attorney was under no legal obligation to respond at any time to your attorney. He had no power to create a situation that if Kaiser did not answer by a cetain date they waived their lien. When you park in a garage, there always are signs up saying your waive any claim against the parking structure owner for damage to or stealing of your car; if one of the employees runs into your car or takes it for a joy ride, do you think they have no liability? It is a negotiating tool with no legal effect.

2. Your attorney created the situation for which Kaiser is going after you. He agreed to resolve, one way or another, all aspects of your case. He has now abandoned you. He has collected more than his full fee because he has taken 40% of an amount that will be reduced by Kaiser being paid something for its lien. So if Kaiser gets $5,000 for its lien, the total net settlement is $19,000 and your atttorney would be entitled to $7,600, not the $9,600 he has already taken. In that example, he has in his pocket part of what should have gone to Kaiser. So there are several reasons to report him to the State Bar.

3. The Kaiser lien on the case is as to the entire settlement, not just the part you recover.

There are several other points to condsider. As to the amount you recover, did he also take out all costs of the suit but apply his 40% to the initial settlement figure, so that he gets more than 40% of the net settlement figure. Southern California attorney use that approach, in the North tort attorney usually substract out all costs and then take their 1/3 of the net settlement amount. Did your own car insurance have a medical pay provision so tha he should have considered giving the medical bills to them to pay [Csaa does not seek reimbursement of the medical bendfits paid]. He might have been entitled udner the common fund doctrine to claim an attorney's fee of 1/3 of the lien, at least some of which would go to you.

It sounds a s though your attorney is not all that knowledge about tort cases, how to bargalin, teh law, or ethics. Try to get him to change but you likely will need to go to the State Bar.

1. Your lawyer did not have the right to unilaterally set a date by which Kaiser's claim would expire. He also did not have the right to release any of the liened funds to you until Kaiser's claim was resolved.

2. This question is harder than you might think. Whether the lawyer has to represent you will depend, in part, on what your contract says. He may have a duty to represent you even if the contract says he doesn't, since he helped create this problem. Then again, he may have a conflict which obligates him *not* to represent you, since he seems culpable and may have an incentive to work against your interests in order to protect his own. I would need to know more about your contract and the facts before I could offer an opinion.

3. Technically the lien was on the entire amount, but I believe the attorney's claim takes precedence over the lienholder's. That means he was allowed to take his fee and his expenses before resolving the lien. Had there been more left over than Kaiser was claiming, the lawyer could have released the surplus to you. But since there wasn't, he should have held all of the remaining funds until Kaiser had been satisfied.