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#122 If you have a problem with your lawyer ?

mp3 #122 What Can You do If You Have a Problem with Your Lawyer? (mp3 file)


This message will discuss the following questions:

1-What should you do if a problem starts?

2-What if you suspect that your "lawyer" isn't really a lawyer?

3-What can you do if your lawyer's bill seems high?

4-Can a lawyer refuse to arbitrate a disputed fee?

5-How do you request fee arbitration?

6-What happens at a fee arbitration hearing?

7-What if you don't agree with your lawyer's advice?

8-What if you have a personal dispute with someone who is a lawyer?

9-What if your lawyer acts unethically?

10 -What are some examples of unethical behavior?

11 -How do you make a complaint?

12-Can you get back any money that you lost?

13-What can you do to help with the discipline process?

14-What happens to your complaint?

15-What happens if the lawyer is prosecuted?

16-Is the judge's decision final?

It is always wise to avoid problems before they arise. To avoid problems with your lawyer, check SmartLaw message # 125 entitled, "How to Work Effectively with Your Lawyer."

First, what should you do if a problem starts?

Get in touch with your lawyer at the first sign of a problem. No matter what the trouble is phone your lawyer to express your concerns. Maybe you and the lawyer have a misunderstanding that can be cleared up in a frank conversation.

If your lawyer does not return your phone call, write a letter and keep a copy. Tell the lawyer exactly what is bothering you and suggest getting together to talk about it.

If you still don't get results, the steps you can take depend on the kind of problem you have.

What if you suspect that your "lawyer" isn’t really a lawyer?

First, call the State Bar of California -at 800-843-9053. Ask the bar’s membership records department whether the person is a licensed lawyer in California. You can also check this information at www.calbar.ca.gov under the "public services" link.

If that department finds that your lawyer is not licensed to practice, the bar will refer you to a law enforcement agency in your area that may investigate the problem. (the State Bar has no authority over non-lawyers who practice law without a license.) If your so-called "lawyer" isn't licensed to practice law in California, ask that person to return your complete file so you can hire a licensed lawyer to work on your original legal problem.

What can you do if your lawyer's bill seems too high?

First, talk with your lawyer about the bill, and make your concerns clear. You may find that the case was more complicated and took more time than you realized. Or your lawyer may agree that a mistake was made on the bill.

If you can't resolve the problem by discussing it, you can request fee arbitration. This is an out-of-court hearing in which one or more persons not involved in the dispute listens to what you and your lawyer have to say, examines the records that are presented and decides on the fee. Arbitration is usually faster and less expensive than going to court, and you can do it without hiring another lawyer.

In most cases, the lawyer must agree to arbitration if you want it. The arbitrator's decision is final immediately if both you and the lawyer want it to be. If either of you do not want the decision to be final, you or your lawyer have 30 days in which to request a new trial in civil court. If no one asks for a new trial, the arbitrator's decision will automatically become final and binding at the end of the 30 days.

If the arbitrator says that you are entitled to a refund and the lawyer doesn't pay it, you can go to court to collect the money. In turn, if the arbitrator says that you must pay the lawyer his or her fee and you don't, the lawyer can enforce the decision with a court order.

Can a lawyer refuse to arbitrate a disputed fee?

In most cases, if you choose to arbitrate, the lawyer must arbitrate. This is true even if he or she has sued you for the money for the fee (unless the lawsuit was filed in small claims court) and even if you and the lawyer agree to the fee in writing.

Exceptions include the following:

-fees set by the law or by the courts, such as ordinary charges for probating a will, or attorney's fees that a judge orders one spouse to pay the other in a divorce.

-fees charged by an attorney who is not a member of the California bar, who does not have offices in California, and who did most of the work for you out of state.

-fee disputes that are only part of your problem with a lawyer, and you have filed a lawsuit to resolve all the problems.

-fee disputes that are taken to small claims court, (unless the lawyer files in small claims court after you have asked for arbitration) •

-fee disputes where the lawyer filed a suit against you to collect the fee, and gave you notice of your right to arbitrate, but you filed an answer to the suit before requesting arbitration.

-fee disputes where you are not the lawyer's client.

How do you request fee arbitration?

Most county and city bar associations operate fee arbitration programs. To find your local bar association, look in the white pages of your telephone directory under the name of your county or city. You also can contact the State Bar at area 415-538-2020, to find a fee arbitration program in your area. You may also obtain a list of approved fee arbitration programs from the State Bar’s website at www.calbar.ca.gov

A filing fee must be paid to initiate the fee arbitration process. The fees charged by the local bar associations can range from $10 to $100, depending on the disputed amount. Many of these local bar associations will waive the filing fee if you cannot afford it.

If there is not a fee arbitration program in your area, or if you believe that you will not receive a fair hearing from the local program, the State Bar will arrange arbitration for you. You can contact the State Bar's mandatory fee arbitration office by calling area code (415) 538-2020.

Once you have found the right arbitration program, you need to request the filing forms. When you fill out the forms, you may have to state the type of case (for example, adoption or divorce); the amount of your lawyer's fee and the amount you believe it should be; and whether you want the arbitrator's decision to be "binding" or "non-binding." a binding decision is final, with no appeal; with a non-binding decision, you and the lawyer agree to retain the right to a new trial in a civil court, if you are not satisfied with the arbitrator's decision.

You can request fee arbitration at any time, but if you receive notification from your lawyer of your right to arbitrate in the event that he or she is planning to sue you for the disputed fee -- then your arbitration request and forms must be received in the local bar office by the 30th day after receiving notification. If you fail to ask for arbitration, you may lose that right.

What happens at a fee arbitration hearing?

Arbitration hearings are informal and conducted by either a panel, made up of lawyers and non-lawyers, or by a sole arbitrator. The structure of the arbitration hearing is based on the program and the amount of the disputed fee.

You can be represented by a lawyer if you want to pay for one, but it is not necessary. If you do not speak English, you can arrange for an interpreter.

You and your lawyer have a chance to make statements, ask each other questions and to bring evidence, such as letter or the fee agreement, which you feel support your statements. You may also bring witnesses, people who were present when you and the lawyer agreed on the fee. If you have problems obtaining certain papers, ask the bar for help.

If you think you need moral support, ask the arbitrator if you may bring a family member or friend. Fee arbitration hearings may be closed to everyone else except the witnesses while they are testifying.

If you want a transcript - a written record - to be made of the hearing, you must hire a court reporter and pay all costs. Remember, fee arbitration is to determine if the fee charged is appropriate for the work the lawyer did on your case; it is not to decide if he or she did a good job or not and then change or eliminate the fee based on that decision.

What if you don't agree with your lawyer's advice?

Let your lawyer know your concerns, and listen to the explanation. If you still question your lawyer’s recommendations, you may want to get a second opinion from another lawyer. Then, if you continue to disagree with your lawyer's advice, you may decide to hire a new lawyer.

You have the right to change lawyers for any reason. However, you should know that a change could delay your case. And, usually you will have to pay the first lawyer for the work that already has been done.

What if you have a personal dispute with someone who is a lawyer?

You may believe that your landlord, who happens to be a lawyer, hasn't given you enough warning of a rent increase. Or maybe a lawyer who charged some tools at your hardware store hasn't paid the bill. Although lawyers are licensed by the State Bar, the bar is not allowed to become involved in such matters. To solve these problems, you need to exercise your rights as a tenant, or as someone who is owed a debt.

What if your lawyer acts unethically?

You should register a complaint with the State Bar if you believe that your lawyer acted unethically.

All lawyers who practice in claifornia must live up to ethical standards imposed by the California supreme court or the state legislature. As an arm of the California supreme court, the State Bar investigates and prosecutes complaints against lawyers.

A lawyer who is found guilty of misconduct according to these standards can be disciplined by the Supreme Court or the State Bar. Depending on the seriousness of the offense, a lawyer can be given a warning, put on probation, stopped or "suspended" from practicing law for a period of time, or "disbarred" - kept from practicing law at all in California.

The bar has no authority to discipline lawyers for such behavior as rudeness, or for making a single, honest mistake. It is limited by law only to complaints about unethical behavior as defined in the codes of professional conduct.

What are some examples of unethical behavior?

Your lawyer might be guilty of unethical behavior when things happen such as the following examples.

What if your lawyer keeps making serious mistakes? Suppose you intend to sue someone who owes you money but who won't pay. If your lawyer forgets to file the lawsuit before the legal deadline, you lose your right to sue.

A lawyer who has a pattern of forgetting to file lawsuits on time can be disciplined. However, a single, honest mistake-is not a violation of legal ethics.

Either way, you may want to consult another lawyer to see if the mistake can be corrected. You also should ask the new lawyer whether you have a case against the first lawyer for improperly handling your case. If so, you can sue for legal malpractice, and seek the money you might have won if the first lawyer had done the job right. Don't wait too long or you will lose your right to sue.

What if you decide to change lawyers, but the first lawyer won't hand over your file. You are entitled to get back all the papers you gave your first lawyer, as well as most other material in your file. Lawyers have the right to keep copies of files that they return to clients, but they must pay for making the copies. If you don't receive your file after calling the lawyer for it, send a certified letter repeating your request. If the lawyer still refuses to return your file, report the problem to the State Bar.

What if you believe that your lawyer has stopped working on your case. Perhaps you have been waiting many months for your lawyer to write your will. Contact the lawyer to find out why there has been such a lengthy delay.

A lawyer's "abandonment" of your case - failure to finish the work - may be an ethical violation. If you don't get results within a reasonable time, get in touch with the State Bar.

What if your lawyer starts or settles a case without your permission. Let's say you hire a lawyer to sue mr. A who hurt you in a car accident. If mr. A offers to settle the case-out of court for a certain amount of money, you must approve the settlement. It is unethical for your lawyer to agree to settle the case without your approval.

If this happens, let your lawyer know right away that you disapprove of the settlement. In addition, register a complaint with the State Bar.

What if you believe your lawyer is not telling the truth to you or to the court. Suppose your lawyer says that your late father's will was filed for probate. Then, you find out that the will has not been filed. Lying to a client or the court is a serious ethical violation.

What if you believe that your lawyer has taken money or property that belongs to you. Maybe you agree to settle a lawsuit for a certain amount of money. Your lawyer receives the money but never gives you your share. Or, you pay a lawyer in advance to work on your legal problem, but the lawyer never does any work.

Ask the lawyer for your money and, if you don't receive it, contact the State Bar. Misusing or dishonestly taking a client's money is an ethical violation and also may be a criminal violation.

How do you make a complaint?

If you believe your lawyer acted unethically, you should make a complaint by phoning the State Bar toll free at 800-843-9053. Or, you can download a complaint form from the State Bar website at www.calbar.ca.gov

You do not have to pay a fee to make a complaint. You also do not have to be a U.S. citizen. When you register a complaint, you should supply photocopies of any papers, such as letters or canceled checks that relate to the problem. Keep the originals in a safe place.

That State Bar will let you know by mail that your complaint form has been received. As the case proceeds, you will be kept informed of its status by a State Bar representative.

Can you get back any money that you lost?

If you lost money because a lawyer did something dishonest, you should first register a complaint by calling the State Bar's intake line toll-free at 800-843-9053. At that time, you should also request that a client security fund application form be mailed to you.

All California lawyers contribute to the client security fund, which helps clients who lose money or property because of their lawyers' dishonesty. If an investigation shows that your lawyer took your money unlawfully, the fund may pay back all or part of your loss up to a set amount.

For more information on the client security fund, you can call the State Bar’s client security fund office at area code 213-765-1140, or by writing to: client security fund, 1149 s. Hill street, Los Angeles, California 90015.

You also may consider filing a criminal complaint, or suing your lawyer for the money you lost. The law sets firm deadlines for starting lawsuits, so you should get legal advice right away.

What can you do to help with the discipline process?

Your role in the discipline process is something like a witness in a court case. You may be asked for information at various times. Then, if the State Bar's investigation of your complaint shows that your lawyer may have acted unethically, the bar will need your testimony to try proving the lawyer's misconduct.

The State Bar does not act as your lawyer in the disciplinary process. Instead, it represents the people of California when it prosecutes lawyers who are accused of doing something unethical. You can help protect others from similar unethical conduct by cooperating with the State Bar's investigators and prosecutors.

The State Bar also cannot help you with the legal problem the lawyer had been handling for you. For that situation, you need a new lawyer.

What happens to your complaint?

If your complaint involves attorney behavior that may be unethical, the State Bar begins an investigation. Generally, the bar notifies your lawyer that a complaint has been filed and asks for the lawyer's side of the story. An investigator checks into the matter, looking at court records, interviewing witnesses and reviewing any papers that you and the lawyer provide. Then, one of three things happens:

-if the investigator does not find enough evidence of unethical behavior, the State Bar may close the case. If so, an investigator will call you to explain why, and then send you a letter. Remember, you have the right to appeal the case's closing to a special complainants' grievance panel made up of both lawyers and members of the public. This group decides whether your case should be reinvestigated.

-if the lawyer's actions were questionable but there isn't enough evidence to prove a serious ethical violation, the bar may issue a warning to the lawyer.

-if the investigator finds enough evidence of a serious violation, the lawyer will be prosecuted for misconduct.

What happens if the lawyer is prosecuted?

During a hearing in the independent State Bar court, evidence for and against the lawyer is presented to a judge. A State Bar prosecutor tries to prove that your lawyer acted unethically. You may be asked to testify at this hearing.

The State Bar court hearing judge, appointed by the California supreme court, can dismiss the case, reprimand the lawyer or recommend that the lawyer be suspended or disbarred.

Is the judge's decision final?

The hearing judge's decision can be appealed to the State Bar court review department by either the lawyer or the prosecutor. This panel of three judges - two lawyers and one non-lawyer who are appointed by the California supreme court - can change or accept the hearing judge's recommendation. Either the lawyer or the prosecutor can ask the California supreme court to hear a review department decision, but the supreme court will not necessarily agree to review the case.

Even if no one appeals, the Supreme Court can review any State Bar court decision. In most cases, however, it will adopt the State Bar court's recommendation for suspension or disbarment as its own decision.

The purpose of this message is to provide general information about the law, which is subject to change. If you want to complain about a lawyer's unethical conduct, call the State Bar toll-free from within California at 800-843-9053.

To obtain a complaint form or a client security fund application form visit the State Bar’s website at www.calbar.ca.gov to inquire about fee arbitration if your local bar association does not provide a program, write or call: office of fee arbitration, State Bar of California, 180 Howard Street, San Francisco, California 94105-1639. Their telephone number is (415) 538-2020.

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