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DA declined to prosecute, Do I still pay lawyer

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rick_r

Junior Member
What is the name of your state (only U.S. law)? CA

I received a DUI in December. It was raining and my car lost traction and hit the center divider. My car was disabled and I could not drive. The airbag deployed so I got a call from the cars assist service. They sent a tow truck to come help me. Somehow the cops showed up also. I wonder if the car called the cops. LOL.

Anyway, I was really nervous and it was cold and raining. They smelled alcohol on me. I had only 4 beers in a matter of 3 hours (I'm 6'1, 200) They performed the road side tests and I passed them all. They decided to still take me in.

I blew a .05 first time and .05 the second. The cops still went through with the arrest.

I got a lawyer because I wanted to play it safe. I could not afford to spend any of my time at the DMV or court. The lawyer charged me 3500. We agreed I would pay 1500 up front and two installments of 1000. I paid the first installment of 1000 and have an outstanding balance of 1000.

He filled the extension to the DMV for my license. My license was immediately given back to me from the DMV without a trial, since I blew below a .08. So he did not need to do anything.

I basically have not heard from him and every time I emailed him he would respond with "No word yet from the DA". I ask if he has my police report yet and he says no.

Today I get a letter from the police department stating the Deputy DA has declined to prosecute. No complaint will be filed. Case dismissed

So basically all my lawyer did was file my extension and talk with me for an hour on my preliminary interview.

My question is do I need to pay him the remainder owed ($1000). Can I go to him and ask for some of my money back since he basically did nothing and the case was dismissed without any effort on his behalf?

I did not sign off on any agreement saying I owe him a total of $3500. All I signed was a document agreeing for him to represent me. He emailed a retainer outlining our agreement but I never needed to sign it.

I am willing to eat the 2500 but I don't think I should need to pay him the balance of $1000.

Opinions are greatly appreciated.What is the name of your state (only U.S. law)?
 


Antigone*

Senior Member
What is the name of your state (only U.S. law)? CA

I received a DUI in December. It was raining and my car lost traction and hit the center divider. My car was disabled and I could not drive. The airbag deployed so I got a call from the cars assist service. They sent a tow truck to come help me. Somehow the cops showed up also. I wonder if the car called the cops. LOL.

Anyway, I was really nervous and it was cold and raining. They smelled alcohol on me. I had only 4 beers in a matter of 3 hours (I'm 6'1, 200) They performed the road side tests and I passed them all. They decided to still take me in.

I blew a .05 first time and .05 the second. The cops still went through with the arrest.

I got a lawyer because I wanted to play it safe. I could not afford to spend any of my time at the DMV or court. The lawyer charged me 3500. We agreed I would pay 1500 up front and two installments of 1000. I paid the first installment of 1000 and have an outstanding balance of 1000.

He filled the extension to the DMV for my license. My license was immediately given back to me from the DMV without a trial, since I blew below a .08. So he did not need to do anything.

I basically have not heard from him and every time I emailed him he would respond with "No word yet from the DA". I ask if he has my police report yet and he says no.
Today I get a letter from the police department stating the Deputy DA has declined to prosecute. No complaint will be filed. Case dismissed

So basically all my lawyer did was file my extension and talk with me for an hour on my preliminary interview.

My question is do I need to pay him the remainder owed ($1000). Can I go to him and ask for some of my money back since he basically did nothing and the case was dismissed without any effort on his behalf?

I did not sign off on any agreement saying I owe him a total of $3500. All I signed was a document agreeing for him to represent me. He emailed a retainer outlining our agreement but I never needed to sign it.

I am willing to eat the 2500 but I don't think I should need to pay him the balance of $1000.

Opinions are greatly appreciated.What is the name of your state (only U.S. law)?
Your attorney did his job. In fact, you know every time you emailed him and he emailed you back you were using his time.

Pay the attorney what you agreed to pay him. Otherwise he will sue you. And that will cost you too.
 

rick_r

Junior Member
Your attorney did his job. In fact, you know every time you emailed him and he emailed you back you were using his time.

Pay the attorney what you agreed to pay him. Otherwise he will sue you. And that will cost you too.
Answering 3 emails with a total of 9 words combined in his answer???

"No word yet"
"No word yet"
"No report yet"
 

Antigone*

Senior Member
Answering 3 emails with a total of 9 words combined in his answer???

"No word yet"
"No word yet"
"No report yet"
You agreed on a price ~ but hey have it your way. So don't pay the guy. Just don't come back here crying about this attorney suing you for $1000 bucks.
 

CdwJava

Senior Member
It's up to you ... but, do you REALLY want to be taking on an ATTORNEY in small claims court? Who do you think is likely to win that contest?

But, if you feel that you have a case, go ahead. You might want to ask for an accounting of his time and a bill and see what he produces.

Also, have you read the agreement for representation? Does it indicate the billing procedure, the amount to be paid, or whether you owe the decided upon amount even if the case does not go to trial?

The $3,500 does sound high for a retainer, but, you apparently entered into this contractual arrangement so you might now have to abide by it.

- Carl
 

rick_r

Junior Member
Here is the agreement

I never signed it and returned it. I also never emailed him saying I agree to the terms.


Re: Engagement for Legal Services

Dear *****:

The following is a summary of our agreement for legal representation in your case:

1. I, **** *. *****, will be the attorney of record for your DUI criminal case. I will be representing you on all legal proceedings involving the DUI charges.

2. This representation involves all legal proceedings reasonably necessary to defend you in ***** Court. This representation includes everything up until trial (if necessary) in your criminal case. In addition, I will be handling your DMV hearing.

3. This agreement does not include any representation on matters that are going to be on appeal. This includes any appeal on a 1538.5 Motion or a Writ to the Superior Court. If trial does become necessary in your case, the cost will be negotiated at that time.

4. The fee in this representation is a flat-fee retainer of $3,500.00 of which $1,500.00 is acknowledged as. The balance of $2,000.00 is due in three (2) monthly installments as follows:

$1,000.00 due February 1, 2009
$1,000.00 due March 1, 2009

5. As you know, litigation involves certain costs and expenses. The fees set forth in paragraph 4 will include all costs except investigator or expert witness fees, of which you will be responsible. Otherwise, this is a true flat fee.

6. No one associated with this office has made any promise or assurance to you or any agent of yours about the result that can be obtained in your case. While we cannot guarantee a result, we can assure you that we will give you our best efforts.

7. You have been advised that it could be argued that it is a crime for an attorney to knowingly receive proceeds derived directly, or indirectly, from criminal activity. For this reason, and any others we do not accept payment in any form that directly or indirectly came from an illegal activity. It has been represented to us that we are not being paid with these types of proceeds.

8. There are a number of provisions in the 31 U.S. Code regarding currency reporting transactions. We have specifically advised you that we do not have any preferences as to the form in which the fees are paid and have not in any way suggested that the fee be paid in one form or another.

9. We take reasonable steps to keep you informed of progress and answer your questions. You shall be truthful with us, cooperate, and keep us informed of developments and keep us advised of your address, phone number and whereabouts.

10. You may discharge us at any time. We can withdraw from your case with your consent or good cause. Good cause includes breach of this contract, your refusal to cooperate with us, to follow or advise my office on important matters, or any other circumstance that would cause our representation to be unlawful or unethical.

As you know, the attorney-client privilege relationship is one of mutual trust and confidence. We encourage you, as our client, to ask questions about our fees or representation that in any way is unclear or are a concern to you. If you are in agreement with the terms and conditions contained in this retainer agreement, please print, sign and date, and return to me.



________________________________
***** (Lawyer name)



READ AND ACCEPTED:



________________________________
**** (My Name) Date
 

justalayman

Senior Member
4. The fee in this representation is a flat-fee retainer of $3,500.00 of which $1,500.00 is acknowledged as. The balance of $2,000.00 is due in three (2) monthly installments as follows:

$1,000.00 due February 1, 2009
$1,000.00 due March 1, 2009

5. As you know, litigation involves certain costs and expenses. The fees set forth in paragraph 4 will include all costs except investigator or expert witness fees, of which you will be responsible. Otherwise, this is a true flat fee.
T
his representation includes everything up until trial (if necessary) in your criminal case.
Looks like you owe.

If you don't like that answer, think about this; your trial drags on fro 13 weeks. The attorney cannot seek more money from you in those circumstances.

It goes both ways.
 

rick_r

Junior Member
Thanks Everyone

I am not trying to skimp out. Trust me I am happy my case was tossed. Not only happy but ecstatic. If anything having a lawyer helped me sleep at night and be a good parent to my kids and that to me is worth more then 3500.

I should have done more due diligence but when something like this happens, a person is very vulnerable and is looking for help.

I just wanted to know legally what I needed to do and what are my rights.

Mental note: Quit the IT field and go into law.
 

CdwJava

Senior Member
I suspect that your 2 payments that are consistent with the terms as laid out will be sufficient to imply you agreed to the terms of the contract.

But, you can hold out and hope he doesn't sue you ... it's up to you. Maybe he'll decide it's not worth it.

- Carl
 

lenny71

Member
You say you are in IT.

Let's make an analogy that you are paid a flat fee to maintain a companies website and servers for a year. They pay you $3500 so they don't have to buy a ton of books and learn a bunch of stuff about servers and websites. They feel their time is best spent elsewhere. They have retained you because if the server or website crashes they want someone to call and know that you will be there.

If the website or server does not crash, would you expect not to be paid?
 
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rick_r

Junior Member
That's a bad analogy.

IT service contracts are not that vague. If we do sign some contract we are expected to not allow the server/network/software to fail which means constant maintenance and upkeep. It's not just a matter of call me if it breaks.

In a call me if it breaks scenerio all agreements are time and material which basically means I will charge you hourly not a retainer.

In either case I am rendering a service and putting quite a bit of time into my job.

I will be paying whatever is stipulated in our agreement. I was just making a joke of the easy 3500 my lawyer just made.
 

tranquility

Senior Member
I agree with the others in that a contractual agreement was probably made. If you really, really don't want to pay you might discuss it with the attorney as it may be an ethics violation to not have a signed representation letter in his file before doing any significant work.

As to the work he did do, I once heard a criminal attorney tell a client, "Would you rather have an attorney who knows the law or one who knows the DA?". In close factual cases, an attorney with a good reputation for truthfullness can get a case kicked for the price of lunch. By presenting the problems with the DA's case and the fact his client intends to take things to trial over a nice Cobb salad, sometimes problems can dissappear without the expense of a trial.

Could that have happened here?
 

cyjeff

Senior Member
That's a bad analogy.

IT service contracts are not that vague. If we do sign some contract we are expected to not allow the server/network/software to fail which means constant maintenance and upkeep. It's not just a matter of call me if it breaks.

In a call me if it breaks scenerio all agreements are time and material which basically means I will charge you hourly not a retainer.

In either case I am rendering a service and putting quite a bit of time into my job.

I will be paying whatever is stipulated in our agreement. I was just making a joke of the easy 3500 my lawyer just made.
Then look at it from an implementation standpoint.

You are paid a flat fee for implementing a software package that reflects your estimate of 1000 hours of work at, say, $150 an hour.

However, you rock... and since there are no implementation issues, you actually finish the project in 500 hours.

Do you return the rest of the money?
 

BigMistakeFl

Senior Member
Owe

You probably owe it and should not try to beat an attorney at his own game. What I would do is try to talk to him about it. He may balk and you may have to pay, but it never hurts to state your case. Call, go in, or write him a letter and tell him your sad story. It can't hurt to ask.
 

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