Can one sue a lawyer in small claims?

[MehtaMar]

Long before I found out avout creditinfocenter, a lawyer talked me into filing for BK. I made a payment to this lawyer. He never called for followed up, and I later found CIC.

Turns out everything the lawyer lead me to believe about my credit issues was false. At the time, I didn't know what I know now.

So I call him up and ask for a refund. He never filed, and had he taken a cursory review of my intake statement/paperwork OR the credit report, it would have been obvious to a lawyer in his specialty(BK) that bankruptcy was not a good option.

They guy mailed me a check for $200 out of $2000 I paid. He claims the other $1800 was hpayment for his time. I fired this guy 9 months ago.

Can I sue in small claims to get my cash back?

[KentWA]

Of course you can sue, but will you win? You are going to have to argue you points of law to the judge against an experienced (maybe not) lawyer. What was the $2K for, the thing or a retainer? What did he really do for the money he took? What does the retainer agreement say? What do the Rules of Professional Conduct say? Is their case law to support your arguments, is there any that does not support it?

[MehtaMar]

Their worklog of this case only shows dates payments were processed. He has not billed any hours. The retainer indicates the lumpsum payment will be applied to the BK filing. The retainer also states that this firm specializes in debts over 10,000. The amount of debt on the forms I filled out was 3000.

There were no papers filed, and he did no work other than to collect payments. I don't think this lawyer acted "zelously in the interest of his client." To quote the professional conduct info from the bar association.

[KentWA]

Then if it was me I would want to expose this guy for the rat he is. Bar Association complaint would be my first step, turning up the pain as I go.

[Coltfan1972]

Of course you can sue them, we live in America, you can sue anybody.

You probably won't win, but I'd skip small claims and at least get 1800.00 out of them with wasted time and answering discovery.

I'm pretty confident I could make them be begging to send me the 1800.00 with all the time they would be getting ready to spend defending the lawsuit. Can you imagine the discovery nightmare for him. He will be taking the affirmative defense position he earned the money. Now it would be time for them to prove it.

Could get 1800.00 worth of tail kicking before you even walked into court for the first hearing.

[debtorshusband]

Originally Posted by KentWA

Then if it was me I would want to expose this guy for the rat he is. Bar Association complaint would be my first step, turning up the pain as I go.

I agree, start with the California Bar Association. Here's the link:

The State Bar of California

There's a link on the home page for "Attorney Complaints". Under that there's information on how to file a complaint, a complaint form, and a pamphlet on "What Can I Do If I Have a Problem With My Lawyer." I haven't looked at it, but I'm thinking that after studying up here, a letter to the lawyer threatening to file a complaint might be the first step.

Good luck,
DH

[BTO429]

i can tell you from experience, i had a similar situation over child support. All I did was an initial consult and was told by the secretary that would not cost me a dime. I talked to the lawyer for about fifteen minutes and told her I would not be needing her help. She did not want to help, all she wanted to do was a support modification,

Any way a year later she sued me for 450 dollars. I argued the defense that she did absolutely nothing for me, but the good ole boy system made me pay her any how.

[racecar]

I do solemnly swear or affirm:

(1) I will support the Constitution of the United States;

(2) I will maintain the respect due to courts of justice and judicial officers;

(3) I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;

(4) I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

(5) I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with my client's business except with my client's knowledge and approval;

(6) I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

(7) I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any cause for lucre or malice;

(8) I will in all other respects conduct myself personally and professionally in conformity with the high standards of conduct imposed on members of the bar as conditions for the privilege to practice law in this state.

I think your attorney missed a few of these.

[jq26]

1) File a fee dispute. That's what it is for. Lawyers are to be paid for their time. If he put in an hour of billables, then expect $1700 back (~$300/hr or so, I don't know what is customary in your area and what his experience level is).

2) If you don't get recourse, small claims you go. Of course you can sue. You had a fee for service. Little service was provided. Your $2000 should have been deposited in an IOLTA and as services were provided, the fees earned get transferred into the lawyer's business account. Did that happen? Likely not from the sounds of it.

If you sue in state court, good luck. He'll bog you down with civ pro, the fee is much higher, and the timeline is somewhere between a year and forever.

[usctrojanalum]

Go to your bar local bar association inquire about the process of disputing his fee. in the county i live, you get an arbitration in front of a 5 person panel, (2 judges, 2 lawyers, 1 lay person).

see if you get something similar.

[1stStep]

The CA Bar has a fee dispute resolution process... you can submit one online.

[calawyer]

A couple of thoughts:

Ask the lawyer, in writing, for a billing history to account for the $1,800 charged.

Wait to get the bill and see if you thinkk the charges are reasonable.

If not, or if you are not given the bill (which you are entitled to), look at the agreement. Does it require dispute resolution with the County Bar? Does your County Bar association have a fee arbitration program? If not, the state bar does: Fee Arbitration

[legaleagle]

Fee resolution is the way to go. if you sue a lawyer for malpractice, his insurance company will take over. Now you have to go toe to toe with an experienced malpractice firm. You will have to establish the basic elements; attorney-client relationship etc. Then you will have to prove that the case would have come out differently had it not been for the actions of the attorney. That usually requires an adjucication of the underlying matter, in which you lost. Then you have to provide an expert witness, which you will never get, this is a closed club, they won't testify against each other. Even if you do find one, they will charge you $1500 per day to testify. Go with the bar association.

[jq26]

Originally Posted by legaleagle

if you sue a lawyer for malpractice, his insurance company will take over.

Just a sidenote here, but a fee dispute and malpractice claim are two distinct issues. I only bring it up because we don't want to muddy the waters here. The OC has a fee dispute issue and isn't claiming any sort of malpractice, just "lack-of-practice" since the attorney didn't really move forward with the case.

[MehtaMar]

The agreement states disputes go to the Bar Association. So I'm going to file for one. What happens now? They have already provided a "partial refund". In their accounting of all action on my behalf there is nothing except payment records. The agreement also references a $200 retainer fee per month. Does this mean I can't recover the remainder?

Slightly confused. Let this be a lesson to ya in the meantime.

[legaleagle]

Correct. Fee agreements are a world apart from legal malpractice. The latter requires a very high standard of proof with expert witnesses. Try to get one. Also you get into the case within a case, etc. Most posters have no clue as to this. I do, I did one and won. Not easy.

[MehtaMar]

I'm not even going to feel sorry for myself after this unfortunate-ness. I'll take it as an expensive learning experience. If I could give anyone any advice before looking at a Bankruptcy attorney or ANY attorney, it would be this:

1) Understand what bankruptcy is. Lawyers will try to sell it to you like this, "It wipes out your debt and gives you a fresh start." Don't listen to that. The following are NOT dischargable with BK: a) Student debt - most kinds b) mortgage debt - most kinds c) auto loans - most kinds d) child support obligations - maybe you can't pay, but you should go to court to adjust this, not file for BK.

2) Understand the actual amount of your debt, not just 'what people say you owe' YOU -- yes YOU!!! Reader!! You Owe me $500!!! Here's a bill! I am going to sue you if you don't pay!!! Are you actually going to pay me? Probably not. So why are you going to believe whatever some random junk debt buyer sends you in the mail? You probably shouldn't. At the very least, write and ask for debt validation. Once you get a real idea of what you ACTUALLY owe, then you can move on toward either paying it off/ fighting the lawsuit/ getting an attorney. You may not even need an attorney. Read these forums! Get inspired!

3)If you are a victim of identity theft, FIGHT AND REPORT IT. I really didn't know the source of the trade-lines on my credit report. I tried to talk to my parents, they basically said it was all my fault and that even if it was fraud, it was still my responsibility to pay because, "obviously if you were paying attention you would have caught it in time." This is not true in the least. Someone could get a store credit card or a store-based line of credit in your name, keep paying on it, and all of a sudden one day its on your credit report. If you notice the identity theft the day it happens, or even years after it happens, REPORT IT AS SOON AS YOU KNOW ABOUT IT. If the debt that you supposedly owe is genuinely not yours, you can file a police report, report it to the CRAs, report it to the police and even sue for cash in your direction if the CRAs or OC doesn't remove it from your credit report.

4) Don't listen to your family's advice about your debt. If you give advice, give RESOURCES, not a lecture My parents kicked me out of the house when I told them about the problems on my credit report. They said I was lying and that people of our religious faith are NOT allowed to incur debt. When they finally did give me advice, it was AWFUL advice (coming from people with... no experience with any kind of debt). For anyone in the situation I was in, I would encourage you to turn off your hearing when the fam starts giving you advice. Just don't listen to it. Be nice. Tell them you appreciate their concern, but that you don't need the advice. If you're asked to GIVE advice, refer your family to CreditInfoCenter.com/forums/ OR give them a phone number to a NACA attorney. I know the family is well-meaning, but chances are, ignorant of the law. Even if it wasn't debt, your family life will be much improved if you keep speculative financial conversations to a minimum, and look for proper advice elsewhere. Don't use an attorney your family suggests.

[usagi555]

Originally Posted by MehtaMar

4) Don't listen to your family's advice about your debt. If you give advice, give RESOURCES, not a lecture My parents kicked me out of the house when I told them about the problems on my credit report. They said I was lying and that people of our religious faith are NOT allowed to incur debt. When they finally did give me advice, it was AWFUL advice (coming from people with... no experience with any kind of debt). For anyone in the situation I was in, I would encourage you to turn off your hearing when the fam starts giving you advice. Just don't listen to it. Be nice. Tell them you appreciate their concern, but that you don't need the advice. If you're asked to GIVE advice, refer your family to CreditInfoCenter.com/forums/ OR give them a phone number to a NACA attorney. I know the family is well-meaning, but chances are, ignorant of the law. Even if it wasn't debt, your family life will be much improved if you keep speculative financial conversations to a minimum, and look for proper advice elsewhere. Don't use an attorney your family suggests.

That sucks. It really does. I had the support of my family. Even cousins in Cali. Mess with one of the clan and you mess with us all. I can guarantee that not one relative out to at least 4th cousin will do business with Citibank unless they haven't heard the story. I can tell you that having that support was invaluable. Oh, I did the grunt work and was learning everything that I possibly could, but knowing that they weren't going to chastise me and that they'd even be ecstatic if I won helped a lot.

[MehtaMar]

Originally Posted by usagi555

That sucks. It really does. I had the support of my family. Even cousins in Cali. Mess with one of the clan and you mess with us all. I can guarantee that not one relative out to at least 4th cousin will do business with Citibank unless they haven't heard the story. I can tell you that having that support was invaluable. Oh, I did the grunt work and was learning everything that I possibly could, but knowing that they weren't going to chastise me and that they'd even be ecstatic if I won helped a lot.

I'd encourage people to support their family going through this like yours did. I really wish I had that support. The ideal support I would have wanted was maybe some specific resources (hey! there's a law library!), a hug once in a while to keep my energy level up, and maybe some help highlighting and making a plan. Anything. It would have made a world of difference. You've got a great family usagi555! Congrats!

If I got that kind of support, I would have not taken a lot of the paths that I did. I'm not angry at my family, but really disappointed that they made the choice they did so blindly. I had a rough time finding a bed at a homeless shelter because the staff thought I was lying ("why would your parents boot you over fraud on a credit report? Go home.). Ironically, at one point, I had to lie and say I was a drug addict to stay there for 2 nights, then spent night 3 educating the shelter manager about my parent's crazy religious principles. It was rough.

Having said all that, my current roomie is getting advice from her very very supportive fam. It's well-meaning, but poor quality advice. I keep directing her to search CIC, and almost every time she does I hear, "Hey! Do you know this poster? Are they legit?" holler, followed by, an "OMG! My mom almost made me...." story about something her mom told her to do, but ended up being unwise. (Like "trying to reason" with the debt collector who's been calling her in violation of the FDCPA).

[usagi555]

Originally Posted by MehtaMar

I'd encourage people to support their family going through this like yours did. I really wish I had that support. The ideal support I would have wanted was maybe some specific resources (hey! there's a law library!), a hug once in a while to keep my energy level up, and maybe some help highlighting and making a plan. Anything. It would have made a world of difference. You've got a great family usagi555! Congrats!

If I got that kind of support, I would have not taken a lot of the paths that I did. I'm not angry at my family, but really disappointed that they made the choice they did so blindly. I had a rough time finding a bed at a homeless shelter because the staff thought I was lying ("why would your parents boot you over fraud on a credit report? Go home.). Ironically, at one point, I had to lie and say I was a drug addict to stay there for 2 nights, then spent night 3 educating the shelter manager about my parent's crazy religious principles. It was rough.

Having said all that, my current roomie is getting advice from her very very supportive fam. It's well-meaning, but poor quality advice. I keep directing her to search CIC, and almost every time she does I hear, "Hey! Do you know this poster? Are they legit?" holler, followed by, an "OMG! My mom almost made me...." story about something her mom told her to do, but ended up being unwise. (Like "trying to reason" with the debt collector who's been calling her in violation of the FDCPA).

I think that shows something that CIC provides that may not have been intended, but is nonetheless very good. I had the emotional support of my family. I didn't have the support of people who knew what it was like to go through the whole ordeal before I came here. CIC provides that. It provides a knowledge base. That knowledge is by no means perfect, but we do try.

Now I have fun with the "you should pay your bills and the banks never screw up" people. I show them two separate communications and ask them to tell me what kind of card I had. I can do that with a little bit of a chuckle now because CIC helped me. It's far better than trying to do that and explaining the injustice of losing.