AboutDoctor Settlement Expertise 27 years of front line plaintiff`s trial lawyer experience in PERSONAL INJURY INSURANCE CLAIMS. Along with other attorneys and insurance adjusters, we have created a website to help injured people settle their own personal injury claims. With the help from feedback from hundreds of satisfied members, www.settlementcentral.com has become THE AUTHORITY for Internet personal injury insurance claim settlements. I am humbled and honored if people can benefit from my experience and current volunteer work in helping injured people. I hope I can explain things in a manner that is useful for the questioner. If not, do not hesitate to e-mail me and I will take a second shot at it! Best Wishes for your physical and financial recovery.
Experience
Life Experience: 27 years of front line plaintiff's trial lawyer experience
Organizations: American Trial Lawyers Association (AAJ)
Washington State Trial Lawyers Association
Awards and Honors:
I am humbled and honored everytime I am selected to help injured people. And when people give feedback that they have benefited from my experience and current volunteer efforts, then that is a double honor and award for me.
Question QUESTION: Hello,
At this point I went through a mediation that involved...coercion,duress etc.and signed a amount far below anything I could have imagined. I requested my attorney to rewind this. Also asked Q&A's that resulted in his dissolving our attorney client contract. I am faced with a few choices. In an up coming hearing, I have yet to deiced a prudent course of action. My Q to you is if he has ended are attny/client relationship... and I agree to pay his Fee&cost under the condition that I want responsibility for negotiating the remaining funds. To satisfy/disperse my LOP'S/bills, etc. by releasing him with a legal release, or affidavit/document etc... Is this possible? Because my med. bills are triple digits. Also after say he or someone else disperses the money left I am still responsible for the unpaid balance. And I know who needs what and have already discussed this course of action with a few of the people involved. My hospital bill alone is 150k!!??
Look forward to your opinion,
Kindest Regards... Bob
ANSWER: Hi Bob,
I am sorry that your settlement efforts did not work out and it sounds like you have a lot on your plate right now to fix. It sounds to me like you were not well served by your attorney and hence you need professional help to get his claws off of your award: do NOT pay him any fees until you get this reviewed. This is NOT the time to go it alone. You are WAAAAAY out of your league in this for the following four reasons.
First, NEVER agree to pay those fees—a new attorney will dispute them for you. The fact that he fired you before the case was completed to your satisfaction may be grounds to deny him a large portion of the fees.
Second, a mediation settlement CAN BE SET ASIDE if you have not signed an actual release. Third, even after signing, if no action has been taken to the detriment of the tortfeasor by your mediation agreement, a new attorney may be able to set aside that agreement.
Third, you are IN NO POSITION to try to get any more money on your own. If I were the adjuster faced with a claimant whose attorney just fired him, I would tell you to go pound sand before I paid you another dime. It just is NOT going to happen, especially after you already went through a mediation.
Fourth, disbursement in the face of the subrogation you imply can get you into a lot of trouble. Yes, YOU DO OWE ANY AND ALL UNPAID BALANCES, so you need to resolve this issue NOW. I believe your first attorney should have resolved ALL of these issues before he can claim one dime of fees allegedly earned.
Hence, if you have unpaid balances or subrogation that should be fought or if you feel your claim does have substantial value in excess of what you agreed to, then you MUST CONSULT another attorney. Let her decide what to do about the fees in claimed by the first attorney.
DO NOT AGREE TO PAY FEES TO THAT FIRST ATTORNEY, until you get the OK from the new attorney. My bet is that if the first attorney forced a settlement in order to get a quick influx of cash into his office, the new attorney will claim that his fees are NOT earned. He will be entitled to only part of those fees, and the new attorney and the old attorney will split the total fee on the case. You DO NOT PAY TWO FEES—you will pay only one contingency fee, and the two attorneys will split it.
By the way, on the off chance that your first attorney did not explain to you the issues in subrogation, here is an excellent insurance subrogation http://www.settlementcentral.com/page0459.htm introduction: fight insurance forced payback.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
QUESTION: Dear Dr. Settlement, J.D. (Juris Doctor),
This is a follow up to my first Q's after receiving your very informative A's. My I guess X-council has sent the following:
1]Notice of hearing
2]Motion to withdraw as Attorney of record
3]Motion to award Plaintiff's Attorney Fee's and Cost
4]Notice of charging lien
5]Defendant's Motion to enforce Settlement Agreement
6]Notice of Evidentiary Hearing on above[#5]
I as of yet been able to find an attorney to get involved. One of the main things that upset my X-council at the mediation was after I asked him what he had found in doing his investigation...turns out did not do a thing, I supplied him with all the paperwork and reports necessary up until my surgery. After that he gathered any bills etc. following. The demand letter was for about $750k, and stated that if not responded in 30 days suite would follow. The case is worth way more more than the mediation amount of 10%!! Medical is over $250...but so far the attorneys I have contacted either are a friend of my x or do not have the time??!! or its out of their expertise. Where is the justice for what is right...morally and ethically. I am disabled permanently and have run out of $$ to survive with children. Thanks to my son of 18 we have been able to scrape by on his job and am borrowing 2-300 on top last months to stay afloat...aaggghhh!And that has reached its end... What else can I say except to continue to oh woe mentally melting in Fl. ....Bob
ANSWER: Hello again, Bob,
Thank you for the nice feedback; I appreciate that. As for the attorney and the motions, I would do these things. All of them are designed to give you more time to find another attorney.
#1. Send a letter to the presiding judge, with a copy to the court clerk to file in your case file. See below for content.
#2. Send a letter via certified mail to the attorney telling him that you are initiating a lawsuit for malpractice if he pushes through this settlement. And, further, that you are going to initiate a complaint to the state bar association http://www.settlementcentral.com/links.php Recite again the fact that he was incompetent in his representation of you. See below for content.
#3. Send a separate letter via certified mail to the attorney telling him to produce your ENTIRE FILE, including all notes and phone messages and all electronic records (e-mails). See below for content.
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#1. Send a letter to the presiding judge, with a copy to the court clerk to file in your case file. Tell them that the mediation settlement is VOID inasmuch as it was agreed to without competent counsel (note spelling). Tell exactly what was done by the attorney and what information he failed to investigate. Tell the judge that such failure is incompetent representation and as such the result of your agreement should be set aside.
Here is a skeleton for you to use. You MUST CHANGE THIS TO FIT YOUR ACTUAL FACTS.
To: Presiding Judge and to Clerk of the Court
Re: clerks file number __________
I am writing in response to miscellaneous motions made by my attorney of record. I respectfully request that these motions be continued for six weeks in order for me to hire a new attorney. These motions follow on my challenges to the competency of my attoney and my refusal to agree to mediation results he pushed me to accept. Since the only purpose of these motions deals with my own settlement, no one will be harmed by continuing them, other than the wait my attorney will suffer (since he appears eager to receive his fees).
This mediation agreement is void inasmuch as it was procured by misrepresentation and incompetence on the part of my attorney. Specifically, I discovered that my attorney was not prepared. He did not have information to present at mediation that would have helped my side. Instead of following up on investigation of important parts of my case, as I had requested, my attorney did absolutely NOTHING in the way of investigation that would have inured to my benefit.
Instead, he did the absolute minimum of gathering records and as such, he was not prepared to represent me in the mediation. I have asked him to produce the name of his malpractice insurer inasmuch as I intend to file a claim if his incompetent representation should result to my detriment.
I believe that instead of looking out for my best interests, my attorney has sought to cut a fast settlement so he can fund his practice. This belief is based upon the ways in which he pressured me to accept a value for my case that I believe is far lower than the actual settlement value, especially if he had done the basic investigation work necessary.
In short, I have suffered a permanent disability in a claim in which I have no negligence and the liability of the tortfeasor is well-established. My medical bills for reasonable and necessary treatments totaled over $250,000. I will be unable to work. My life has been totally devastated by the negligence of the tortfeasor. My attorney did not present my case in a competent manner owing to the fact he was lacking information he should have gathered. Hence, he pushed me to accept the sum of $___, which is inadequate.
Thus, I respectfully request that these motions be set over for six weeks until my new attorney can appear on my behalf.
Very Truly Yours,
Bob ________
Copy to: my attorney
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#2. Send a letter via certified mail to the attorney telling him that you are initiating a lawsuit for malpractice if he pushes through this settlement
Sent Via Certified Mail
Dear attorney,
Enclosed please find my response to your motions. I am going to bring a malpractice claim against you should your incompetence inure to my detriment in resolving my tort claim.
As you are aware, I claim that you did not investigate my claim properly, that you were unprepared for mediation, and that you were pushing me to accept a lesser sum than the value of my claim.
Please put me in contact with your malpractice carrier.
Very Truly Yours,
Bob
Encl: letter to presiding judge
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#3. Send a separate letter via certified mail to the attorney telling him to produce your ENTIRE FILE, including all notes and phone messages and all electronic records (e-mails).
There are TWO ways to fire an attorney: 1) you get your new attorney to do it and to arrange for transfer of the entire file; or 2) you have to do it yourself, as suggested by use of the information and termination letter listed below.
So #1 is to first consider allowing a new attorney to be the one who has all of the contact with your present attorney, thus eliminating any chance of an uncomfortable situation should he want to try to talk you in to staying with him.
Thus, you will INTERVIEW with another attorney BEFORE you terminate your present attorney. In the event you are more likely to terminate the contract with you present attorney, then let this new attorney be the one to give notice of termination and arrange to get your file. You will not have to do anything, and your old attorney and his staff will be prohibited from contacting you.
This is the BEST WAY to terminate a professional services agreement inasmuch as the new attorney does all of the contact, and the client never has to face the staff or the attorney who just got fired.
FIND AN ATTORNEY who will take your case, and you can offer her a certain percentage above what the existing attorney achieved. You are having problems because there is no apparent money in a claim for the new attorney. Hence go out of town and seek a malpractice attorney. That attorney might want to leave the settlement just where it is and to then sue for malpractice ASSUMING WHAT YOU SAY IS TRUE.
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Dear Attorney ___________,
NOTICE OF SUSPENSION OF PROFESSIONAL SERVICES AGREEMENT PENDING DECISION REGARDING TERMINATION OF AGREEMENT
I hereby give notice that effective immediately, I am suspending our professional services agreement until I can investigate and decide whether to continue on with your representation or to terminate our agreement.
You are instructed to:
• do no further work in my file;
• have no further contact whatsoever with any insurance representative, whether from the tortfeasor's or my own company;
• prepare my ENTIRE file (including documents stored electronically, unless paper copies are in the file) for me to pick up as soon as practicable;
• if you decide to omit or retain anything from my file, WHETHER paper or electronic documents or other materials, please include a writing identifying the document(s) withheld by you and the reasons therefor.
• should I later decide to terminate the agreement, please let me know what costs I owe to your firm;
• assuming I agree with the costs bill, I will agree to sign a lien with the insurance company to pay the cost bill out of my award;
• should I later decide to terminate the agreement, please let me know what attorney fees I owe to your firm;
• assuming I agree with the attorney's fee bill, I will agree to sign a lien with the insurance company to pay the attorney's fee bill out of my award;
• in the event I do not agree with the attorney's fee bill, I will not sign a lien, but I will suggest mediation or arbitration as provided by the (insert name of your state) State Bar Association.
I understand that you may feel entitled to payment of costs or fees at this time (BEFORE you release my file), but I do not have the funds to make such a payment, and I do need to make immediate progress on my claim, either in self-representation or obtaining new counsel. Therefore, my file should be released without my having to pay first, in accordance with ethics opinions. I am willing to sign a lien for costs and for your fees owing, as indicated above.
I would appreciate it if you would respect my decision in this matter and not call me to discuss things. I just need to pick up my file and to review it and thereafter to decide how I wish to proceed. I hereby designate (insert name) as my agent who is authorized to pick up my file from your office. Please leave a message on my answering machine when my file is ready for pickup.
3. Find out from them how to arbitrate attorney’s fees if necessary
4. Find out from them how the lawyer referral service works in your state
These steps will give you the necessary backbone to carry off this transaction. You will find that your own state bar association is a wonderful institution. Many people wrongly assume that bar associations are just for the benefit of attorneys and help attorneys to win fee disputes with their clients.
Nothing could be further from the truth. State bar associations do a lot for attorneys, to be sure. But they also are well oriented toward providing true service to the public that interacts with attorneys. You will find helpful folks at the state bar, and they will guide you.
They will not offer any direct guidance on the topics above, however. Still, they can help with finding ethics opinions such as I have cited. And they can tell you about fee arbitration or fee mediation services as I am going to describe below.
Your state or county bar association should be able to put you in touch with a lawyer referral service. These attorneys are volunteers who agree to help people at very low hourly rates. NOTE: they will tell you that they cannot take on a personal injury claim. Tell them that this is NOT for personal injury representation or guidance: all you want is help in figuring out the best way to get rid of attorney fees that were not earned and to pick up the file. They may not wish to act in opposition to the attorney, but they should be able to give you guidance.
It would also help if you were to find a lawyer referral service attorney who would act as an escrow for minimal fees. Ask him to pick up the file and to arrange for settlement of outstanding fees and costs owing to the attorney. Thus, he would agree to accept the insurance checks and to pay out to the attorney the costs and whatever fees are later agreed upon.
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WHAT IF THE ATTORNEY INSISTS ON EXCERSING HIS possessory lien rights AGAINST YOUR FILE: i.e. holding your file hostage until you make satisfactory payment of costs and fees?
In the example I included in the letter above, the client tells the attorney three things:
1. that she cannot pay at this time;
2. that she needs the file to make progress in her claim;
3. and that she will agree to sign a lien with the insurance company on those costs or fees with which she has no complaint.
Those conditions are drawn from the Washington State Bar Association Formal Opinion 181 (1987) Asserting Possessory Lien Rights and Responding to Former Client’s Request for Files http://www.wsba.org/lawyers/ethics/formalopinions/181.htm
SUMMARY OF FORMAL ETHICS OPINION:
"When, however, there is a dispute about the amount owed, or the client does not have the ability to pay, the lawyer cannot assert lien rights if there is any possibility of interference with the former client’s effective self-representation or representation by a new lawyer. A lawyer cannot exercise the right to assert a lien against files and papers when withholding these documents would materially interfere with the client’s subsequent legal representation."
THE ATTORNEY MAY NOT CHARGE YOU FOR MAKING COPIES OF YOUR FILE. If he wants copies of any of your documents, then he must do so at his expense.
"At the conclusion of a representation, unless there is an express agreement to the contrary, the file generated in the course of representation, with limited exceptions, must be turned over to the client at the client’s request, and if the lawyer wishes to retain copies for the lawyer’s use, the copies must be made at the lawyer’s expense."
I am willing to bet that if you showed that opinion to your own state bar association, they would concur and be able to cite you to similar rules in your home state.
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HOW MUCH SHOULD YOU OWE YOUR ATTORNEY FOR WHAT HE DID TO DATE?
TO ACHIEVE A FAIR AND REASONABLE PERSONAL INJURY ATTORNEY FEE, LEARN AND CITE your State Rules of Professional Conduct REGARDING REASONABLE LEGAL FEES. Your State Bar Association http://www.settlementcentral.com/links.php can help you with this, and I would not hesitate to contact them ASAP.
NO MATTER WHAT YOUR FEE AGREEMENT SAYS, YOUR STATE BAR ASSOCIATION IS NOT GOING TO LET YOUR ATTORNEY ABUSE YOU BY TAKING A FEE HIGHLY DISPROPORTIONATE TO THE WORK INVOLVED!
Here is the guidance direct from the site of the Washington State Bar Association, one of the leading institutions of its kind in the nation. www.wsba.org. This is for illustrative purposes, but your State Bar Association will likely have the same or similar content.
Factors in Determining Reasonable Legal Fees (NOTE, MY COMMENTS WILL BE IN CAPS FOLLOWING CERTAIN FACTORS)
There are a number of factors involved in establishing a reasonable legal fee according to the Rules of Professional Conduct for lawyers. They include:
1. the time and labor required, (HOW MANY HOURS SHOULD IT HAVE TAKEN TO DO WHATEVER IT IS HE DID?)
2. the novelty and difficulty of the questions involved, (SIMPLE TASKS HERE?)
3. the skill required to perform the legal service, (MINIMAL?)
4. the terms of any fee agreement between the lawyer and the client,
5. the fee customarily charged locally for similar legal services,
6. the likelihood, if clear to the client, that the acceptance of the particular employment will preclude the lawyer from accepting other employment;
7. the amount involved and the results obtained, (COULD THE SAME RESULTS HAVE BEEN "ACHIEVED" BY A BLIND DOG WITH A DEMAND LETTER IN HIS MOUTH?)
8. the time limitations imposed by the client or the circumstances;
9. the nature and length of the professional relationship with the client;
10. the experience, reputation, and ability of the lawyer, and
11. whether the fee agreement or any confirming writing demonstrates that the client received a reasonable and fair disclosure of material elements of the fee agreement and the lawyer's billing practices.
These, or very similar rules have been adopted by your own State Supreme Court, and your own State Bar Association does a service to the public by providing both access to the rules AND two forums for clients to enforce them versus their attorneys regarding fee disputes.
Note that this is NOT just something that the attorney may or may not agree with: HE IS DUTY-BOUND TO COMPLY WITH THESE RULES. The preamble to the rules states as follows:
”The Rules of Professional Conduct are MANDATORY in character. The rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."
As I said, this pertains in your state also, so do not be afraid to confront your attorney on this topic.
GIVEN THAT GUIDANCE, WHAT SHOULD YOUR PERSONAL INJURY ATTORNEY RECEIVE FOR HIS FEES FOR WORK TO DATE?
I would wonder whether your attorney really has done any legal work to date that merits a fee based upon the "going rate" for legal work in your community.
CONSIDER YOUR STATE BAR ASSOCIATON FORUMS FOR RESOLUTION OF DISPUTES WITH ATTORNEYS
Obviously I do not know what your own state bar association has in place for resolution of fee disputes, but I present the following as pretty typical throughout the country.
In the event your attorney still tries to hold out for a fee of more than $1,000 for just writing a few letters, he should consider requesting participation in one of the forums sponsored by your State Bar Association. The Bar usually provides two forums for attorney versus client disputes. The first one is mediation and the second one is arbitration. Both are voluntary, but most attorneys who are asked to participate get the hint real quick and agree to go through the process.
I favor starting with mediation. It is informal and I do not believe that your attorney will really need the mandatory binding nature of arbitration. Once he gets the notice that you are considering State Bar Association mediation, his attitude will improve immediately.
The Mediation Program is offered to help settle of disputes informally and promptly with the assistance of a neutral third-party mediator.
Often disputes arise out of a misunderstanding concerning the expectations and responsibilities of the parties. These disputes may be settled agreeably once a dialogue is established. Mediators strive for open communication, with the understanding that the mediator is not acting as a lawyer or fact finder, but as a neutral individual whose purpose is to facilitate settlement between the parties.
The person beginning the process pays around $75 as a filing fee. The other side, if he or she agrees to mediate, also pays a $75 filing fee. MEDIATION IS NOT BINDING ON THE PARTIES.
ARBITRATION
Your State Bar Association fee arbitration program has only one purpose: to decide the fair and reasonable value of the lawyer's legal services for a client. The program is not mandatory for either lawyers or clients. Fee arbitration does not occur unless both parties agree to arbitrate and agree on the amount in dispute.
The filing fee depends on the amount in dispute. If the amount in dispute is under $10,000 the filing fee for each party is usually around $75. If the amount in dispute is $10,000 or over, the filing fees are usually around $125. FEE ARBITRATION IS BINDING ON THE PARTIES.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
QUESTION: Dr. Settlement, J.D. (Juris Doctor);
I have just received a subpoena from the defense to appear for the evidentiary hearing at the same date and time as the rest of the ones mentioned above. In the mediation I was to receive payment in 20 days. That was from end of Sept. Should I contact them and ask for check now and then see my x attorney in court about fees etc. as followed above. As I see no way of getting further funds from the defense. Then pursue the malpractice??Shot in the dark asking...but could not resist. And just going to court is going to be a charge...and it gives me an out if I am excused by this attorney...he wants to give out the check and be done. My beef is with my spotty attorney now for the malpractice. Sincerely Bob
Answer While I surely do appreciate your nice comments on the feedback forum, Bob, I am afraid we have come to the end inasmuch as I am going to scold you now for not getting professional assistance.
A subpoena is nothing to mess around with. You need to add that attorney to the list on your letter and ask the judge to excuse you from the subpoena until you get an attorney.
If you persist in going this alone, you WILL LOSE, and there is no guarantee of any malpractice claim. After all, nobody twisted your arm to get you to agree to the settlement. And settlement agreements are most often held to be binding inasmuch as the society favors settlements. Hence, what basis would you have for a malpractice claim? If you knew at the time that he did not have accurate information, why did you not end the mediation right then?
These are the kinds of questions you will face in any malpractice claim. Hence, you need professional help before putting any eggs at all in that malpractice basket.
So, send the letters and get an attorney ASAP. Try a malpractice attorney if you feel that the efforts of your attorney feel beneath the standard of care for an attorney. She might tell you that you have no claim whatsoever. If that is the case, then you will regret agreeing to a settlement now, and instead you should have fought the settlement. Can you see the dangers here of proceeding on your own, Bob? Professional help is A MUST RIGHT NOW.
