It is frustrating when you are dissatisfied with your lawyer or her work — especially if you don’t know what to do about it. Here are some strategies for dealing with common problems that arise during legal representation.
The Lawyer Won’t Communicate
This distressingly common problem doesn’t have an easy solution. A lawyer who doesn’t return phone calls or communicate with you for an extended period of time may be guilty of abandoning you — a violation of attorneys’ ethical obligations. But that’s for a bar association to determine (if you register a complaint), and it won’t do you much good in the short term.
If your lawyer doesn’t seem to be working on your case, sending a polite but firm letter laying out your concerns should get your lawyer’s attention. Don’t threaten to file a malpractice lawsuit or complain to the bar association; such threats will probably make your lawyer angry and defensive, not attentive.
If your lawyer does not respond, or subsequent meetings or conversations are not fruitful, consider suggesting mediation to work out your communication problems if you still want this lawyer to represent you. A bad desk side manner doesn’t mean that the lawyer isn’t an excellent lawyer, and it can be difficult to find a new one in the middle of a case.
If you conclude that you simply can’t work with your lawyer anymore, fire your lawyer and find someone new. You may also want to have a second lawyer evaluate your first lawyer’s actions and advise you about paying (or refusing to pay) any bill you receive, filing a complaint with your state lawyer discipline agency, or suing the lawyer for malpractice.
If your lawyer has actually stolen from you or acted with gross incompetence, the authorities in charge of disciplining lawyers in your state should show some interest.
File a complaint with your state’s lawyer discipline agency. Every state has an agency responsible for licensing and disciplining lawyers. In most states, it’s the bar association; in others, the state supreme court. The agency is most likely to take action if your lawyer has failed to pay you money that you won in a settlement or lawsuit, made some egregious error such as failing to show up in court, didn’t do legal work you paid for, committed a crime, or has a drug or alcohol abuse problem.
Unfortunately, these state agencies are famous for moving at a slow pace, not pursuing complaints vigorously, and communicating poorly with people who file complaints. Still, it is important to report a legal skunk. Many agencies wait until they have several similar complaints about a particular attorney before taking action.
Getting compensated. State bar associations are primarily concerned with punishing lawyers (though rarely severely), not compensating clients. But all states except Maine, New Mexico, and Tennessee do have funds from which they may reimburse clients whose attorneys stole from them.
You’re Concerned About the Lawyer’s Work
It’s often hard for a client to know whether or not a lawyer is doing a good job. But if you think your lawyer’s ability leaves something to be desired, investigate — before it’s too late.
Communicate. If your lawyer doesn’t seem to be working on your case, talk to your lawyer and explain your concerns.
Get your file. If you can’t find out what has (and has not) been done, you need to get hold of your file. You can read it in your lawyer’s office or ask your lawyer to send you copies of everything — all correspondence and everything filed with the court or recorded with a government agency.
If you’ve already ended your relationship with the lawyer, you need your file pronto to make sure all deadlines are met, mistakes are repaired, and the matter keeps moving. If the lawyer is unresponsive and the matter involves a lawsuit, go to the courthouse and look at your case file, which contains all the papers that have actually been filed with the court.
If you’ve hired a new lawyer, ask her for help in getting your file. Also, ask your state bar association for assistance. If that doesn’t work, as a last resort you may need to sue your lawyer in small claims court, asking the court for money to compensate you for what you’ve spent on redoing work in the file or trying to get the file.
Research. If you’re not satisfied with your lawyer’s strategy decisions or with the arguments the lawyer has been making on your behalf, you may even want to go to the law library and do some reading to educate yourself about your legal problem.
Get a second opinion. If you’ve got serious doubts about how your case is being handled, see a second attorney. Second opinions are relatively inexpensive — an hour or two of a lawyer’s time spent talking to you plus any time spent reviewing papers. And they are often very valuable in helping you decide whether to stay with your current lawyer or change to someone better suited to the task.
The more you can tell and show the second lawyer about your case, the better advice you will get about whether your case is being handled correctly and what might be done differently. Keep in mind, though, that no two lawyers handle a case in exactly the same way, and that a second opinion is usually a cursory review, not a comprehensive analysis.
Fire your lawyer. It’s your absolute right to fire your lawyer at any time for any reason. Give it serious consideration if you’re convinced the lawyer is doing a bad job or if your relationship with the lawyer has become intolerable.
But dumping a bad lawyer can be expensive. If you hire a new lawyer, you’ll have to pay him or her to get up to speed on your case. If the first lawyer hasn’t done much, this shouldn’t cost a lot. But if you have a trial scheduled for three weeks from now, your new lawyer will have a monumental and time-consuming job.
Sue for malpractice. If you lost money because of the way your lawyer handled your case, consider suing for malpractice. Know, however, that it is not an easy task. You must prove two things:
your lawyer messed up and
you would have won your case otherwise.
It’s not enough to show that your lawyer made a mistake — you must show that the mistake caused you financial loss that you would not have suffered if your lawyer had handled your case properly in the first place.
If you want to sue for legal malpractice, do it as quickly as possible. A common defense raised by attorneys sued for malpractice is that the client waited too long to sue. And because this area of the law can be surprisingly complicated and confusing, there’s often plenty of room for argument.
Legal malpractice cases are expensive to pursue, so do some investigating before you dive in. There’s no point in suing if the lawyer doesn’t have either malpractice insurance or valuable assets from which to pay you if you win.
Lawyers often send bills that consist of not much more than a notation like this: “32 hours @ $150/ hour = $4,800 now due.” You deserve better — and should demand it.
Scrutinize your bill. Spend some time closely examining a lawyer’s bill. Compare your fee agreement to any itemized bill (lawyers sometimes call these “accountings”) your lawyer gives you. If your lawyer doesn’t give you an itemized bill, ask for one. If you are paying by the hour, make sure your lawyer is charging you as agreed. Because your lawyer wrote your fee agreement, insist that ambiguities be resolved in your favor.
Don’t pay all or part of your bill. You may not have to pay a lawyer who quits representing you on the eve of trial, violates ethical rules, or charges you fees considered unconscionable (outrageous). If your lawyer charged you for the time of two lawyers who did the same thing, or charged for compulsively and unnecessarily organizing files, insist that the bill be reduced to a reasonable sum. And never be afraid to ask about questionable or unclear charges; the lawyer may offer to reduce the bill.
If you just can’t work out something with the lawyer, consider going to arbitration. Arbitration is an out-of-court procedure for resolving disputes using a neutral outsider called an arbitrator. Most states have voluntary fee arbitration programs, which allow either a lawyer or a client to suggest arbitration.
Mandatory arbitration. You may, in fact, be required to turn to arbitration. In some states — including Alaska, California, Maine, New Jersey, South Carolina, and Wyoming — arbitration is required for most fee disputes between lawyers and clients. In New Jersey, attorneys must submit fee disputes to arbitration, although clients have the option of taking complaints directly to court.
In many states, however, it is not legal for a fee agreement to contain a mandatory fee arbitration clause. This is because your attorney, your professional adviser, is ethically prohibited from presenting you with an agreement in which you give up your right to sue the attorney in court. Despite this fact, lawyers are increasingly inserting mandatory arbitration clauses in their agreements. They argue with some plausibility that because arbitration is usually cheaper, faster, and easier than a civil court trial, it’s in everyone’s best interest.
Binding or nonbinding? Arbitration can be binding or nonbinding. Binding arbitration means you and you lawyer are bound by the arbitration decision — neither of you can appeal. An arbitration clause in an attorney-client fee agreement usually calls for binding arbitration. In it, you give up the right to sue in court and have your case decided by a jury. In exchange you will get a quick, final result.
Nonbinding arbitration means that either side can reject the arbitrator’s decision and file (or continue with) a lawsuit. Arbitration by a local or state bar’s fee arbitration panel is usually nonbinding. Beware that in some states, a nonbinding arbitration award often becomes binding and final if you fail to reject the decision within about 10-30 days. In other states, by contrast, you need to take steps to make a nonbinding award binding. For example, you may be required to file a copy of the arbitration decision with a local court.
Choose nonbinding if you have a choice. Unless binding arbitration is required under your agreement or state law, you are usually best off proceeding with nonbinding arbitration. This will give you an opportunity to organize your case and have a practice run before the matter reaches court. And there is always a chance that you and the lawyer will either settle the matter during the process or accept the arbitrator’s award.