Legal Question in Family Law in Texas
I am wondering if my lawyers are guilty of malpractice.
On 11/15/12 I was served with a Suit Affecting Parent Child Relationship by my former boyfriend. We were never married and his name was not on my sons birth certificate. I had moved with my son out of the county in which we resided 1 month prior to his filing of the suit. I have no drug charges or any other convictions at all, my ex is not claiming any sort of negligence on my part and there has been no gap in my possession of the child. My son is only 13 months old and still breast feeds. My ex is asking for primary conservatorship with the exclusive right to determine residency of my son and collect child support.
I retained an attorney for the handsome fee of $7500 (which was funded in part by a family friend)on 11/28/12. The attorney filed a General Denial and a Petition to Adjudicate Parentage on my behalf. On 12/19/12 we were to have a Temporary Orders hearing. We met at the court house but were never put on the family law docket and never went before a judge. Instead, my attorney and my ex's attorney came to an "agreement" on the TO pertaining to visitation and child support. My attorney assured me that there was no dispute in regards to child support and that my ex would begin payment immediately upon receiving a positive DNA paternity test.
More than a month after the positive DNA test I was still not receiving child support. I was having great difficulty supporting my son on my own as I am a nursing student and the cost of daycare is very high, this is not even to mention the retainer cost previously mentioned.
When I asked my ex about child support payments he informed me that there was no order stating that he was required to pay child support. He showed me his copy of our TO agreement (my attorney never provided me with one) and it indeed did not include a child support provision, it only included a visitation schedule. I noted that the TO did not have the official stamp that signifies that it had been filed with the District Clerk.
I asked my attorney about the TO and she assured me that we indeed had a legally binding agreement and that all parties were protected. However, upon investigation I found that the TO was never filed with the District Clerk and was never signed by either party or a judge. I understand that in Texas a verbal agreement is legally binding, however, it would be impossible to prove that either party ever agreed to the terms listed in the drafted TO. As of now, there is no standing order. My attorney became very defensive when I brought this to her attention and assured me repeatedly that there was indeed a standing order.
I asked multiple times since I first gave her the retainer for an invoice detailing services for which I have been billed. She continuously put me off on the matter. On 01/28/13 when I confronted her with the TO issue I also asked how much I had in my retainer. She said it was approximately $3000. We emailed 3 emails back and forth regarding the TO and the invoice I was asking for. After those emails she told me my retainer was at $2450. I asked that all action on my case be halted until I could review the services for which I was being extensively billed. At that point she became very defensive and rude and sent an email to me and the family friend who assisted with my retainer stating explicit facts about the case (breech of confidentiality) and saying negative things about me which was very embarrassing as she accused me of being disrespectful which I certainly was not. She also attached to this email an invoice showing that not only had every dime of my retainer been used but that I owed an additional $158.75.
She is claiming to have earned $7658.75 in services before even establishing Temporary Orders. This claim was made one day after stating that I had approximately $3000 in my retainer.
She also, on 12/19/12, informed me and my sister that she had never received a payment from the family friend who told me he contributed $3500 to my retainer. She claimed that the only payments she had received toward my retainer were from me directly and totaled $3000. Once I assured her that the friend had proof of payment in the form of a bank statement she retracted her earlier statement and verified the total amount paid was $7500 (another $1000 was paid at a later time). I never thought to assume she was lying about the payment as I trusted her. I now realize that she was likely trying to con more money out of me.
When I reviewed the Motion to Withdraw I saw that it stated that the reason she was requesting to withdraw was because I refused to pay my retainer and because I owed her more money. I refused to sign as I do not agree that I owe her more money.
Does this situation sound like grounds for a malpractice suit? I NEED to recover the funds paid to her. I am completely hung out to dry without representation with trial pending. I am flat broke and can't afford another lawyer. Help!
1 Answer from Attorneys
You need to request an itemized bill for the work she has done. She must provide you one.
Do you have a signed Legal Services Agreement? You need a copy of that document too.
You also need to ask her for a copy of your entire file. She is entitled to keep her notes since that is her attorney product & belongs to her. That should get you a copy of the temporary orders if they exist.
If it is a "Rule 11 Agreement", most are not signed by a judge - they can be signed by the attorneys only & be binding. These might not be scanned into the Harris County computer system -- so the District Clerk might not have them "on file". The "stamp" might not also be relevant. You are putting a lot of weight on insignificant details that might be easily explained.
The court's file is open to the public so you can actually go to the courtroom & look at the actual file yourself. You just cannot remove anything from the court's file. Then you can see what is in the court's file.
The problem with your case is that she did work on your case & appear in court on your behalf. She did work on your case. She did not take your money & not perform services. She did talk to you apparently on the phone & via email. Your complaint appears to be that your money is gone & you are only at temporary orders -- that happens & it is unfortunate. But she negotiated on your behalf. What happened at the courthouse ("cutting a deal in the hallway") happens all the time & entering into agreed orders is common.
I don't think you have a Malpractice case. You have a disagreement about your fees.
I can't tell where you live. In Houston, the Houston Bar Association has a committee that handles complaints against attorneys for fees. But I don't know if you are in Houston.
I served on that committee a few years ago. I would look at her hourly rate, how many hours she spent on your case & how many hours she spent doing the work she billed you for to see if it was reasonable. For example, if she said she spent 100 hours preparing for court -- that is unreasonable.
You might contact the State Bar of Texas about filing a complaint with them. Check out their website. You can call them. You need to remain calm & state the facts only so that they can help you. If you get emotional, they won't be able to "listen" to you.
You must also post your question on www.avvo.com. It's another free website where people can post questions. I would shorten your question. Keep to the facts only. Your commentary is too long. Short & to the point will get more answers.
I hope this information is helpful.
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