Can a lawyer who completely screwed his client give a refund in exchange for silence?

[DivorceHell]

New York CITY

My "attorney" completely botched a landlord tenant case in which we were not provided heat (and were able to prove it by the landlord's own written admission) and in which we were harassed mercilessly by the landlord. We even came to an agreement with the landlord to leave the apartment in writing which he decided to screw around with at the last minute. The attorney didn't even know the facts of the case and urged us to settle for more money than we would have paid if we'd stayed the extra 4 months. I became very ill and defaulted on the terms of the settlement and the attorney claimed to have notified us by phone although no phone record existed from his office to my cell phone. Every other time that any correspondence took place between his office and myself, it was in the form of an email with the official paperwork scanned.

We wound up having to pay an obscene amount for the other side's lawyer fees and it ultimately led to my wife and I getting divorced six months after our first child was born. After complaining to the law firm they gave us a refund under the condition that we never speak about it, never complain, never file suit against the attorney and never complaining to the Bar. All just to get a refund for an attorney who did the worst possible job, who emailed me that if we didn't sign a completely horrible settlement that my wife and I could go to jail and who didn't even know the terms of the settlement when we went back to court. When the judge asked why we signed the settlement, I started to say that our attorney said we had to and that if we didn't that there would be consequences and he interjected that he said there COULD be consequences.

We were harassed by the landlord, denied basic services, we hired the lawyer well before we moved out, he did nothing but give us BS and tell us when money was due, he had ME put together the "evidence" and never bothered to learn a damned thing about the case and supposedly, he's one of the top attorney's in NYC. Only his ads never mentioned that he doesn't pay attention to his hourly clients, just the cases where the state screws someone and he can hit them on a contingency basis. He actually said to someone in court (in ebonics no less) that he envied the lawyer who got his case into the Supreme Court. There were always clients in his waiting room that did not appear to be able to afford his hourly rate.

This is over and done with. We signed a paper when we got our refund stating that we were done with everything. Everything we signed was with the worst legal advice possible and we were dead broke and couldn't afford a consultation with another lawyer let alone retain one.

Do we have ANY recourse?

 

[tranquility]

It seems you signed a contract. You can breach the contract, but, it is unlikely you would gain from any outside suits or issue resolution.

 

[DivorceHell]

It seems you signed a contract. You can breach the contract, but, it is unlikely you would gain from any outside suits or issue resolution.

We signed a contract. I'd say it was under significant duress, but we did sign. I was under the opinion that contracts signed under duress were invalid, but of course, I'm not a lawyer.

 

[justalayman]

After complaining to the law firm they gave us a refund under the condition that we never speak about it, never complain, never file suit against the attorney and never complaining to the Bar

so there was where you had a choice: accept the conditional refund or refuse it and leave the other options available.

Do we have ANY recourse?

maybe. You would have to have an attorney review everything but if the contract was unconscionable, it may be void as a matter of law. It there are other issues, it may be voidable. The problem is you risk breaching it by allowing another attorney review the facts. If it is valid and you breach it, you could be subject to the penalties specified within the contract or damages the attorney is subject to.

Even if you were successful in voiding the contract, where would you expect to go from there? It would mean you would owe whatever was refunded to you and you would still be divorced (which as much as you want to you cannot blame on the attorney).

 

[tranquility]

We signed a contract. I'd say it was under significant duress, but we did sign. I was under the opinion that contracts signed under duress were invalid, but of course, I'm not a lawyer.

The settlement may have been under duress, but not the contract to be quiet in return for the money you paid the attorney. That is incentive, not duress.

 

[DivorceHell]

It seems you signed a contract. You can breach the contract, but, it is unlikely you would gain from any outside suits or issue resolution.

The settlement may have been under duress, but not the contract to be quiet in return for the money you paid the attorney. That is incentive, not duress.

Well, that depends on how you define duress and I think this would make an interesting legal concept. After our attorney failed to notify us of the default (which we had three days to correct and which he received papers for that he didn't forward) we were liable for a ton of money that emptied our life savings and told our lawyer this. We explained that due to his misconduct that we were unable to pay our rent and that after having a consultation with another attorney that all four circumstances that are required to prove attorney malpractice were easily met. Our attorney's law firm made an offer which was far more than what we eventually got and they "were preparing the contract" until the end of the month when they knew we'd be desperate. It was at this time that they withdrew their offer and told us that they'd "pay us X amount" which happened to be the same amount that I'd paid them.

We could not afford a malpractice attorney. We could not afford to pay our rent and were purchasing food from a dollar store. Our paychecks were a relief but went directly to bills, bills and more bills. The worst part is that half the attorney's fee was paid by credit card and had to be paid back immediately.

Yes, I am divorced but I certainly can blame our attorney for it since the only reason we got divorced is because we lost absolutely everything in a lawsuit where the following occured:

duty -- that the attorney owed you a duty to act properly and did not do so. Our attorney didn't even do the bare minimum, canceled prep sessions, did not know the case at hand and didn't even bother to read over the settlement before telling us that we'd go to jail if we didn't sign it.

breach -- that the attorney breached his duty: he was negligent, he made a mistake, or he did not do what he agreed to do- our retainer clearly said that we'd be represented by the firm to the best of their ability and we were not represented at all. Had I gone pro se, I'd have won this case based strictly on the fact that our landlord admitted to his wrongdoing IN WRITING. I'm talking almost 150 pages of emails that confirm that he refused basic service, locked the thermostat at a temperature that was lower than the minimum temperature allowable in the winter and an email that he mistakenly forwarded me while writing to his lawyer that stated that he wanted to "hit back" and that I was a liar after calling 311 (as was my right) and that although he was responsible for maintaining the property that he did not want me to know where he was.

causation -- that this conduct hurt you financially- damned straight. We left the apartment legally, he didn't even hand us back our security deposit although the apartment was in the exact same condition as it came in. Under the law, there was absolutely no part of the landlord's case that would have held up AND when we went to trial, the landlord committed perjury on the 4th question he was asked. Our lawyer convinced my wife (who until that point had absolutely no part at all in the case) that a settlement paid by us was in our best interests, when I protested our attorney actually told me to shut up, told my wife that I was not a lawyer and after he convinced her, he told me he couldn't represent a party that wanted opposite results. The worst part? After it was over, he said that he was late and had to be somewhere and rushed from the building.

damages -- that you suffered financial losses as a result-

In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how she handled your case. Then you must show that you would have won the underlying case that the lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.

If our attorney had even cared a bit, he would have realized that we were legally allowed to move out. He had asked me at the beginning for 10 conditions that were wrong with the apartment and actually cut and pasted them for the answer to our lawsuit. He did less than the bare minimum and if he had put even minimal effort in, the landlord's entire case would have been thrown out of court. We had every right to expect damages of over 40,000.00 and instead we wound up paying the landlord more than 75k. Best of all, the judge held the ruling until my wife gave birth to our first child. That was great, every hope and dream we ever had died with the loss of everything we ever had and more besides.

The written admissions by our landlord were textbook examples of what NOT to write if you're a landlord. And we didn't hire the cheapest, crappiest lawyer we could find. Our attorney advertises EVERYWHERE, pays tremendous amounts to have negative reviews removed from the internet and claims to be the most successful tenant attorney in NYC. We were victims of our attorney. Victims of malpractice. Financially stripped of everything we had after we followed the law to the letter.

I refuse to believe that this is not a gross injustice that might be reheard if some type of attorney, maybe even a civil rights attorney, were to represent us.

 

[DivorceHell]

so there was where you had a choice: accept the conditional refund or refuse it and leave the other options available

Due to the financial hole we were left in and the fact that we'd just had a child, we had no choice in the matter at all. And the attorney knew it.

 

[Zigner]

Due to the financial hole we were left in and the fact that we'd just had a child, we had no choice in the matter at all. And the attorney knew it.

Yes, you did have choices. Duress is something like "sign it or I'm going to shoot you with this gun"...not liking the alternatives doesn't mean it's duress.

 

[Zigner]

Yes, I am divorced but I certainly can blame our attorney for it since the only reason we got divorced is because we lost absolutely everything in a lawsuit where the following occured:

You got divorced because you and your ex were not able to handle stress. In a similar situation, some couples would form an even stronger bond.

 

[justalayman]

Due to the financial hole we were left in and the fact that we'd just had a child, we had no choice in the matter at all. And the attorney knew it.

we all make choices based on circumstances. You did have options. The lack of funds did not alter that. It could affect your ability to exercise those options but the law does not take that into account. You had options is all they see.

 

[anearthw]

We had every right to expect damages of over 40,000.00 and instead we wound up paying the landlord more than 75k. Best of all, the judge held the ruling until my wife gave birth to our first child.

Why were you expecting $40k? Exactly how was this property so valuable that you felt reasonable to demand so much?

 

[DivorceHell]

Why were you expecting $40k? Exactly how was this property so valuable that you felt reasonable to demand so much?

Back rent, damages to our property after the landlord intentionally flooded our apartment, the costs associated with moving and attorney fees. 40k. It may seem excessive, but the 75k we were forced to pay was FAR more excessive.

The apartment was expensive, I felt it was acceptable due to the fact that we were pregnant and needed a 3 bedroom apartment. I worked from home and lost my work computer, our furniture was destroyed, our electronics shorted out, basically EVERYTHING was ruined. Our apartment was flooded when the landlord intentionally plugged the drainage system in the backyard and the water rushed through our apartment like New Orleans during Katrina.

Never mind the constant and never ending harassment. It was the most stressful and horrific experience of my life (until I lost my wife and the ability to sleep under the same roof as my son.)

I'm not trying to b*tch and moan here. Our lawyer totally and completely screwed us.

My question still stands, do I have any recourse whatsoever? This is obviously a screaming miscarriage of justice. Isn't there something that protects people from being utterly victimized?

 

[DivorceHell]

Yes, you did have choices. Duress is something like "sign it or I'm going to shoot you with this gun"...not liking the alternatives doesn't mean it's duress.

And so the settlement was certainly signed under duress... "Sign it or you and your wife can lose the case and will probably be held in contempt and jailed."

He just didn't want to take the time to negotiate the settlement. he was too busy representing people who didn't pay their rent in the projects who had their lights/water/whatever turned off.

 

[DivorceHell]

It seems you signed a contract. You can breach the contract, but, it is unlikely you would gain from any outside suits or issue resolution.

The settlement may have been under duress, but not the contract to be quiet in return for the money you paid the attorney. That is incentive, not duress.

Well, that depends on how you define duress and I think this would make an interesting legal concept. After our attorney failed to notify us of the default (which we had three days to correct and which he received papers for that he didn't forward) we were liable for a ton of money that emptied our life savings and told our lawyer this. We explained that due to his misconduct that we were unable to pay our rent and that after having a consultation with another attorney that all four circumstances that are required to prove attorney malpractice were easily met. Our attorney's law firm made an offer which was far more than what we eventually got and they "were preparing the contract" until the end of the month when they knew we'd be desperate. It was at this time that they withdrew their offer and told us that they'd "pay us X amount" which happened to be the same amount that I'd paid them.

We could not afford a malpractice attorney. We could not afford to pay our rent and were purchasing food from a dollar store. Our paychecks were a relief but went directly to bills, bills and more bills. The worst part is that half the attorney's fee was paid by credit card and had to be paid back immediately.

Yes, I am divorced but I certainly can blame our attorney for it since the only reason we got divorced is because we lost absolutely everything in a lawsuit where the following occured:

duty -- that the attorney owed you a duty to act properly and did not do so. Our attorney didn't even do the bare minimum, canceled prep sessions, did not know the case at hand and didn't even bother to read over the settlement before telling us that we'd go to jail if we didn't sign it.

breach -- that the attorney breached his duty: he was negligent, he made a mistake, or he did not do what he agreed to do- our retainer clearly said that we'd be represented by the firm to the best of their ability and we were not represented at all. Had I gone pro se, I'd have won this case based strictly on the fact that our landlord admitted to his wrongdoing IN WRITING. I'm talking almost 150 pages of emails that confirm that he refused basic service, locked the thermostat at a temperature that was lower than the minimum temperature allowable in the winter and an email that he mistakenly forwarded me while writing to his lawyer that stated that he wanted to "hit back" and that I was a liar after calling 311 (as was my right) and that although he was responsible for maintaining the property that he did not want me to know where he was.

causation -- that this conduct hurt you financially- damned straight. We left the apartment legally, he didn't even hand us back our security deposit although the apartment was in the exact same condition as it came in. Under the law, there was absolutely no part of the landlord's case that would have held up AND when we went to trial, the landlord committed perjury on the 4th question he was asked. Our lawyer convinced my wife (who until that point had absolutely no part at all in the case) that a settlement paid by us was in our best interests, when I protested our attorney actually told me to shut up, told my wife that I was not a lawyer and after he convinced her, he told me he couldn't represent a party that wanted opposite results. The worst part? After it was over, he said that he was late and had to be somewhere and rushed from the building.

damages -- that you suffered financial losses as a result-

In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how she handled your case. Then you must show that you would have won the underlying case that the lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.

If our attorney had even cared a bit, he would have realized that we were legally allowed to move out. He had asked me at the beginning for 10 conditions that were wrong with the apartment and actually cut and pasted them for the answer to our lawsuit. He did less than the bare minimum and if he had put even minimal effort in, the landlord's entire case would have been thrown out of court. We had every right to expect damages of over 40,000.00 and instead we wound up paying the landlord more than 75k. Best of all, the judge held the ruling until my wife gave birth to our first child. That was great, every hope and dream we ever had died with the loss of everything we ever had and more besides.

The written admissions by our landlord were textbook examples of what NOT to write if you're a landlord. And we didn't hire the cheapest, crappiest lawyer we could find. Our attorney advertises EVERYWHERE, pays tremendous amounts to have negative reviews removed from the internet and claims to be the most successful tenant attorney in NYC. We were victims of our attorney. Victims of malpractice. Financially stripped of everything we had after we followed the law to the letter.

I refuse to believe that this is not a gross injustice that might be reheard if some type of attorney, maybe even a civil rights attorney, were to represent us.

 

[Zigner]

And so the settlement was certainly signed under duress... "Sign it or you and your wife can lose the case and will probably be held in contempt and jailed."

No, that wasn't duress.

He just didn't want to take the time to negotiate the settlement. he was too busy representing people who didn't pay their rent in the projects who had their lights/water/whatever turned off.

The more you type the more it sounds like you are simply bitter.