"GO AHEAD... FIRE ME... I DARE YOU"

"GO AHEAD AND FIRE ME...WHO CARES... 

I'LL JUST PUT A LIEN ON YOUR CASE FOR MY FEES"

 By Louis Nogali 

Often times a client is forced to FIRE his BAD lawyer when it’s self evident, the lawyer has abandoned the prosecution of that client’s good case. 

It all starts with the usual unreturned phone calls, the phone battles with the arrogant receptionist, the missing court dates, the failure to keep the client reasonably informed on the status of that client’s case, etc.. ( probably because nothing has been done since he was retained, safe sometimes for the sending of a simple representation letter to the insurance company, or to opposing counsel ) 

A client could also be forced to fire his BAD lawyer, perhaps because the BAD lawyer once thought he had a million dollar case when the client walked through the door, and saw the crutches and the bruises (he probably told the client that his case was worth a million bucks). This bad case evaluation, could have been primarily based on the following facts: 

1. On the BAD lawyer’s inability to either know the law on the issue when the client came in for consultation,.. 

2. Or because his inability to establish some type of legal theory on which to base a claim upon 

3. Or because of pure and simple laziness, 

4. OR because after some reconsideration, he realized post retention, that to bring such a case to trial in front of a jury, (if is a contingency agreement) it would cost the BAD lawyer an arm and a leg, in expert fees, jury fees, and other incidentals, something 99.9 % of other GOOD reputable lawyers normally advance for the client without a glitch, but a BAD lawyer, never agrees to pay out of his pocket anything if all possible. 

5. Or because the BAD lawyer sticks to his motto of “Settled cases pays the bills” and “tried cases’ “Bills” makes you ill” In other words LOTS and LOTS of work...and money....Something foreign to a BAD lawyer’s.. Modus-Operandi ... 

So it’s easier for a BAD lawyer to just put the file in the “Forgotten” or the “Let’s see what happens” drawer, until a phone call comes in from some adjuster who wants to bestow a little mercy on behalf of humanity, (something that occurs once every millennium) And offers a “nuisance value only” “Found money” or “Take it or leave it” so called “Settlement Offer”.. 

So once that occurs, your so called “GOOD “ lawyer gets to put all his “negotiation” knowledge and skills he’s learned at all those Los Angeles County Bar Association (LACBA) seminars to a test and good use by bullshitting the client into accepting such a “Good Offer” so that the BAD lawyer can get some type of fees, and buy himself a new life...pay his rent, or pay his State Bar membership Fee.... 

It doesn’t matter what the Client gets... 

BUT if all of the above never happens and the CLIENT wises up and decides to FIRE the so called “Good lawyer”, despite the stellar performance as described “hereinabove” (“hereinabove” is one of those $400 word some Bad lawyers like to use to dazzle and BS the opposition when they can’t write themselves a cohesive sentence out of a paper bag if their lives depended on it) But if all that fails, the BAD lawyer still has one more trick up his sleeve.. 

If a client FIRES his BAD lawyer’s ass because of any of the above, the BAD lawyer thinks he has nothing to worry about... He thinks he is “FULLY” protected because in his retainer agreement, he has very cleverly placed a “LIEN” clause, giving him priority in getting his exorbitant, and extortionate fees and costs paid in the event of termination prior to a settlement or a judgement. 

Perhaps you saw something like one of these clauses below in your BAD lawyer’s retainer agreement and wondered what it all meant.. Or perhaps you never read that sentence during your interview because you were being dazzled with all the brilliant courtroom legal battle victories by the so called GOOD lawyer...you know the ones where he gets a $20,000 jury verdict after 10 years of litigation. 

Here is what a BAD and so called GOOD lawyer has on his retainer agreement. 

“LIEN. Client hereby grants Attorney a lien on any and all claims or causes of action that are subject of Attorney’s representation under this agreement. Attorney’s lien will be for any sums owing to Attorney for any unpaid cost, or attorney’s fees, at the conclusion of Attorney’s services. The lien will attach to any recovery Client may obtain, whether by arbitration award, judgement, settlement or otherwise. The effect of such a lien is that Attorney may be able to compel payment of fees and costs from any such funds recovered on behalf of Client even if Attorney has been discharged before the end of the case. Because a lien may affect Client’s property rights, the Client may seek the advice of an independent lawyer of client’s own choice before agreeing to such a lien”  

And here is what another “GOOD” lawyer has on his retainer agreement: 

“LIEN: Client hereby grants Attorneys a lien on any and all causes of action Client may assert in any court action brought by Attorneys on Client’s behalf under this Agreement. Attorneys’ lien will be for any sums due and owing to Client to Attorneys at the conclusion or termination of Attorneys’ services. The lien will attach to any recovery Client may obtain in the court action, whether by judgment, settlement or otherwise” 

AND still yet another on his retainer agreement also says: 

“ Client shall pay ATTORNEY as his fee for such representation the sum of THIRTY THREE and 1/3 percent ( 33 1/3%) of any settlement obtained. If a lawsuit is necessary and filed, then the Client shall pay ATTORNEY as his fees the sum ogf FORTY PERCENT (40%) of the settlement, verdict, award or recovery. ATTORNEY shall have a LIEN on my cause of action and any favorable judgement obtained, to the extent of the percentages mentioned above in the event of premature termination by the client” 

As you can see this last guy wants it ALL.. This last guy, if the client gets a new attorney to continue representing him, will get NOTHING for his services according to this lien’s verbiage. 

BUT are these lawyers allowed to do this ? 

99.9% of all REAL GOOD attorneys have similar clauses in their retainer agreements. Such lien clauses are allowed under California law... Most of these REAL GOOD lawyers, use these clauses as protection against scumbag clients who despite a good representation and good settlement or jury verdict, they still nickle and dime their REAL GOOD attorney when the time comes to distribute the spoils of the litigation...ie the MONEY...

Often times these scum bag clients do not agree on the fees and thus refuse to sign off or endorse the settlement check. It is on those RARE instances where a LIEN clause is designed to protect these REAL GOOD Attorneys.. 

BUT what we are talking about here, are those BAD and so called “GOOD” lawyers who are lazy, and do absolutely NOTHING for their client during their representation as their lawyer and now that the client has decided to substitute them for a REAL GOOD lawyer, the BAD and so called “GOOD” lawyer suddenly tries to hide behind his “LIEN” clause to get “HIS” exorbitant fees and costs paid. 

The Law here in California is very clear on this issue.. In the most recent California Supreme Court Case of Fletcher v. Davis (2004) 33 Cal.4th 61, the court very clearly stated that California Rules Of Professional Conduct 3-300 goes against the applicability of a Lien by a former BAD lawyer who the client was forced to FIRE, to hurt a client by purposely holding settlement or judgement moneys back until his fees are paid by the client...

Said rule states as follows: 

Rule 3-300 Avoiding Interests Adverse to a Client: 

“A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied: (A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and (B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and (C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.” 

In other words. Let’s say you had a good personal injury case, but your so called “GOOD” BAD lawyer that you hired did nothing and forces you to FIRE his ass. At the firing, he arrogantly tells you to go pound sand because he doesn’t care what you do since he has a “LIEN”clause in his retainer agreement, for his fees and costs. ( that portion was never fully explained to you by him when you retained him. At the firing you are NOT told how much as of that day his fees and costs are..) 

So the next day you find a VERY GOOD attorney to substitute the BAD one. The new retainer agreement also calls for the payment of 33 1/3 % of the settlement amount etc..... 

After another year, the VERY GOOD lawyer manages to get you a sizable settlement agreement for let’s say $350.000. GREAT you say...$233.345 for you for compensation for your injuries, and for your VERY GOOD lawyer $116.655.. CASE RESOLVED you say...Right ??? WRONG !! 

Your happy fairy tales dream is quickly shattered when your VERY GOOD lawyer tells you that your former so called “GOOD” BAD lawyer who sat on his ass for most of the time he was your “attorney” and did nothing for you, has sent your VERY GOOD lawyer a statement of “HIS FEES & COSTS” in the amount of $$85.000. And now that your case has been settled, he wants “his money”. 

As security, your former so called “GOOD” BAD lawyer has sent your VERY GOOD lawyer a copy of the “LIEN” he has placed on the outcome of your case. To make matters worse, the shyster insurance carrier adjuster, sent the settlement check payable to YOU, the BAD lawyer, and the VERY GOOD lawyer’s name. Your VERY GOOD lawyer wants to sign the check but won’t until the BAD lawyer reduces his extortionate fee to a much more realistic amount, like $200. 

The BAD lawyer tells your VERY GOOD lawyer, he did LOTS, and LOTS of work on your file and he is entitled to get $85.000 pursuant to a valid LIEN and that he’ll only sign the settlement check once his entire amount is paid ... 

YOU want to sign the check so you can get your $233.345 so you can feed your family who by now are near starvation... BUT at the same time, you tell your VERY GOOD lawyer not to pay the $85.000 claimed by the BAD lawyer..

.So in the mean time YOU as the client get NOTHING.... 

That’s what the NEW California Supreme Court case of Fletcher v. Davis (2004) 33 Cal.4th 61 is designed to avoid... 

Under this new mandate, the BAD lawyer can’t just hold the former client hostage or the payment of his extortionate unearned fee by withholding signing off on a settlement check. In fact the mandate states that the BAD lawyer if he has a dispute over his fee with the former client, or vice-versa, he must IMMEDIATELY take steps to resolve the issue without causing an adverse HARM to the former client. 

The BAD lawyer must get declaratory relief from the court, or by arbitration of the fees IMMEDIATELY. 

He cant just play dilatory games and hold off endorsement of the settlement check in a capricious fashion, with the sole intent to force the payment of a fee that’s been disputed by the client..The mandate suggested placing the disputed amount in a neutral account if agreed by everyone, where no one can get it while the determination process is obtained. If that meets with everyone’s approval, the rest of the settlement proceeds MUST be released to the client... 

The mandate clearly indicated that it’s the BAD lawyer who must seek judicial intervention or Arbitration IMMEDIATELY and not the client.. 

So if you are in a similar situation and you have a so called “GOOD” BAD, lawyer who you are contemplating FIRING and if you do and he gives you a load of CRAP about his “Lien clause” etc, YOU can now tell him to pound sand... 

Or if you are contemplating retaining an attorney and you read that portion of his retainer agreement which contains a LIEN clause, it may be a good idea to have him/her explain in detail what that clause means, and INSIST to include an hourly breakdown of his fees in the event of premature termination (OR you FIRING his ass ) 

In other words, agree to a LIEN clause, but for the reasonable amount of work ACTUALLY performed, at the rate of let’s say $250 per hr (or less if you can get it) in any event make sure he/she is a VERY GOOD attorney .. Don’t get suckered. GOOD LUCK. 

I hope this posting has helped you. If it has, and you have your own story to tell, please do so and share it in your comments below. Thanks for Visiting our Blog... 

(DISCLAIMER: No portion of this post should be considered as giving legal advice, but is to be used for informational purposes only. If you need an attorney ,The publishers of this post are NOT lawyers and strongly urge its readers to consult with a reputable legal professional or to contact the State Bar Association for a proper referral)