Legal Question in Real Estate Law in California

I visited my Brother's lawyer with my sister-in-law and asked him if he would be interested in taking a case on a contingency basis. He said yes. No contract was ever signed. I asked him what it would cost me. He said $1,500.00. I told him I did not have much money. I paid the cost over time. The second court date he missed and the judge warned me my case could get thrown out if he continued to do that. The Judge was very upset. The case is about Breach of Contract (Custom Home Construction within a specific period of time), Fraud, Punative Damages and Contractor's Bond (s?). My attorney missed a second court date just before the case was moved to another city, closer to his office. The Judge awarded the Builder my Punitive Damages and I believe it was because my attorney missed that second court date. He apparently called into the court at 9:02 am and should have been in at 8:30 am. In his recent letter to me, he was very careful not to mention the Punitive Damages awarded to the Defendent, but mentioned all of the other charges.

He moved into a larger law office with another attorney in another city. Asked me to come in for a meeting as this was a very complicated case. He told me I have to share in the cost of the case and he wants $2,500.00 to help with the expenses and that we may not get anything from the court. I informed him in front of my Brother we never had that conversation. There was no agreement or conversation with him that I would help pay for expenses because my belief was when an attorney is hired on a contingency basis, the attroney assumes the cost of everything and what is awarded to him by the court takes care to the expenenses and his costs. When I made the verbal agreement with him, I had asked him to ask the court to pay his fees and court cost separate from my awards and damages (in front of my Sister-in-law and again in front of my Brother. He agreed. My damages are listed as unlimited by the courts and involves a house that was built in 2005. I never signed off on the house because I considered the house as incomplete and the Builder tried to get me to sign off on a blank piece of paper. I did not.

The Contractors Bond Company expires in 2 years after the completion of a home. I did not sign off on the house because of the damages to my home. Plus I was unable to move in because the Builder continued to build the house 1 month after escrow closed). I told him I would do what I could but did not have much money. I am retired and postdated a check for $200.00. I saw him after court and gave him another $100.00, asked him to hold it and he promptly walked into the bank and cashed it. It cost me $18.00 by my credit union. Now I have to borrow money to make up for that $300.00. In a letter dated after this meeting he is asking for $2,500.00, in 5 days, another $1,000.00 for an inspector as a retainer for him and his fees of $125.00/hour to inspect this house and structural defects. My lawyer has to be notified in 6 days if I cannot afford to pay the $1,000.00 for this expert.

Now my attorney is saying I have agreed to sholder the cost of litigation, which I did not; that my case is so specialized he will reuire the assistance of expert wittnesses along with an association counsel to assist him; in addition to this he will have to do the necessary discoveries. (I have to pay for this). Without this he will have to withdraw from the case.

In all of the confusion, I suppose the $1,500.00 and the $300.00, did not apply to any costs and I have no explaination as to what these monies were used for. Now I am being asked to supply my documentation of Fraud against this Builder and Company when I did not come up with the charge of Fraud. I can only assume he did this because I was charged $750.00 for Termite Treatment of the ground before the structure was built and was never treated. The Builder bought a duplicate Course of Construction Insurance when I purchased one and did not reimburse me; he kept my house for 1 month after escrow closed which was >$2000.00 mortgage payment/month and did not reimburse me.

If I ask for a written Retiner Agreement at this time, I fear It will be much worse than what is stated to date. However, I am going to ask him if he is the cause I lost my Punitive Damages award.

Where do I go from here? If my Attorney drops my case, how will I save it in court before the Judge makes a final ruling? I suspect he will not give me enough time to comtact the court before the judge makes a final decision if he drops my case and I will have lost everything.

Are there Attorneys out there who may take this case if needed and ask for all cost to be paid to the attorney and yet award me monies to repair my home plus other damages? Or are there certain costs I have to assume under a Contingency Basis Retainer?

Thank you very much.


Asked on 2/14/11, 4:29 pm

1 Answer from Attorneys
Anthony Roach Law Office of Anthony A. Roach

There is no such thing in California as an oral contingency retainer agreement. All retainer agreements where the attorney is to be paid on a contingency are to be in writing.

"An attorney who contracts to represent a client on a contingency fee basis shall, at the time the contract is entered into, provide a duplicate copy of the contract, signed by both the

attorney and the client, or the client's guardian or representative, to the plaintiff, or to the client's guardian or representative. The contract shall be in writing and shall include, but is not limited to, all of the following:

(1) A statement of the contingency fee rate that the client and attorney have agreed upon.

(2) A statement as to how disbursements and costs incurred in connection with the prosecution or settlement of the claim will affect the contingency fee and the client's recovery.

(3) A statement as to what extent, if any, the client could be required to pay any compensation to the attorney for related matters that arise out of their relationship not covered by their contingency fee contract. This may include any amounts collected for the

plaintiff by the attorney.

(4) Unless the claim is subject to the provisions of Section 6146, a statement that the fee is not set by law but is negotiable between attorney and client.

(5) If the claim is subject to the provisions of Section 6146, a statement that the rates set forth in that section are the maximum limits for the contingency fee agreement, and that the attorney and client may negotiate a lower rate.

(b) Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee."

(Bus. & Prof. Code, sect. 6147.)

I suggest you go and get a real attorney, who would properly prepare a written retainer agreement up front.

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Answered on 2/19/11, 1:27 pm


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