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Lawyer unable to finish the case....

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mshockey17

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

I have retained an attorney to handle my divorce and we worked together to get to the point that we were a final court date away from leaving it to the judge to decide the final terms of the case since she and I were not able to come to a final agreement on our own. My attorney informed me that he has health issues and can not continue and has recommended a new lawyer. I feel that some of the money I have paid to the original lawyer should go to the new guy since the time spent was at least partially effort to finish the case which he is no longer able to do. I understand that he spent the time but a lot of the time was spent filling his head with the knowledge needed to go before the judge in a trial. Now the new lawyer has to repeat some of that work.

I am not trying to give him a hard time and I feel bad that he is sick but I am not rich. What do you think?
 


Zigner

Senior Member, Non-Attorney
What is the name of your state (only U.S. law)? New York State....

I have retained an attorney to handle my divorce and we worked together to get to the point that we were a final court date away from leaving it to the judge to decide the final terms of the case since she and I were not able to come to a final agreement on our own. My attorney informed me that he has health issues and can not continue and has recommended a new lawyer. I feel that some of the money I have paid to the original lawyer should go to the new guy since the time spent was at least partially effort to finish the case which he is no longer able to do. I understand that he spent the time but a lot of the time was spent filling his head with the knowledge needed to go before the judge in a trial. Now the new lawyer has to repeat some of that work.

I am not trying to give him a hard time and I feel bad that he is sick but I am not rich. What do you think?
You need to pay the attorney for the work he has done.
 

mshockey17

Junior Member
You need to pay the attorney for the work he has done.
Based on your reply I believe that you feel that I should not ask for any of the money back that I paid him for the work. I think that you realize that I would need to pay someone else to do the work that he has already done meaning that I am paying for much of it twice; do you feel that is fair?
 

adjusterjack

Senior Member
Ask the lawyer for an itemization of how the money you paid so far has been applied to his work.

If you disagree with it you can file a fee dispute:

http://www.nycourts.gov/admin/feedispute/

Meantime, you will still have to write a check to the new lawyer to get him started.
 

percylaw

Junior Member
Contact the Bar association

The best thing you can do is speak with the Bar of your state and see what options they can give you.
 

Zigner

Senior Member, Non-Attorney
Based on your reply I believe that you feel that I should not ask for any of the money back that I paid him for the work. I think that you realize that I would need to pay someone else to do the work that he has already done meaning that I am paying for much of it twice; do you feel that is fair?
I didn't say that at all...

Do you expect a refund from your gardner for the work he's already done once he decides to stop working for you?
 

mshockey17

Junior Member
I didn't say that at all...

Do you expect a refund from your gardner for the work he's already done once he decides to stop working for you?

Gardening is a perpetual service and does not have a conclusion and for that reason I do not feel that the question makes sense.
 

Zigner

Senior Member, Non-Attorney
Gardening is a perpetual service and does not have a conclusion and for that reason I do not feel that the question makes sense.
It obviously does have a conclusion with respect to the old gardner ;) It also makes sense as an analogy. The gardener does the work. The gardener has knowledge about your lawn and your wishes. When you get a new gardner, you're going to have to take the time to teach the new gardner about your lawn and your wishes. Why should the old gardner pay for that?
 

mshockey17

Junior Member
It obviously does have a conclusion with respect to the old gardner ;) It also makes sense as an analogy. The gardener does the work. The gardener has knowledge about your lawn and your wishes. When you get a new gardner, you're going to have to take the time to teach the new gardner about your lawn and your wishes. Why should the old gardner pay for that?
Thank you for the reply but I do not agree with you. I think a better comparison might be similar to the technical work that I do. I am often asked to prepare technical reports which are audited and when asked I can easily provide the time that it took me to write the report. The time that I took to understand the technical requirements, design and test the system in order to know enough to write the report is far less tangible but without those activities there would be no basis for the content of the technical document. To ask someone who did not participate in those activities to write that report is not realistic and I think this situation is similar.
 

quincy

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

I have retained an attorney to handle my divorce and we worked together to get to the point that we were a final court date away from leaving it to the judge to decide the final terms of the case since she and I were not able to come to a final agreement on our own. My attorney informed me that he has health issues and can not continue and has recommended a new lawyer. I feel that some of the money I have paid to the original lawyer should go to the new guy since the time spent was at least partially effort to finish the case which he is no longer able to do. I understand that he spent the time but a lot of the time was spent filling his head with the knowledge needed to go before the judge in a trial. Now the new lawyer has to repeat some of that work.

I am not trying to give him a hard time and I feel bad that he is sick but I am not rich. What do you think?
What does your contract say about fees?

Here is a link to New York's Rules of Professional Conduct: http://www.nycourts.gov/rules/jointappellate/ny-rules-prof-conduct-1200.pdf

See Rule 1.5, Fees and Division of Fees, and see Rule 1.16, Declining or Terminating Representation.

Your attorney will turn over his case file to the new attorney and do his best to make the transition a smooth one. There is no reason to contact the Bar Association at this point in time.
 

not2cleverRed

Obvious Observer
What is the name of your state (only U.S. law)? New York State....

I have retained an attorney to handle my divorce and we worked together to get to the point that we were a final court date away from leaving it to the judge to decide the final terms of the case since she and I were not able to come to a final agreement on our own. My attorney informed me that he has health issues and can not continue and has recommended a new lawyer. I feel that some of the money I have paid to the original lawyer should go to the new guy since the time spent was at least partially effort to finish the case which he is no longer able to do. I understand that he spent the time but a lot of the time was spent filling his head with the knowledge needed to go before the judge in a trial. Now the new lawyer has to repeat some of that work.

I am not trying to give him a hard time and I feel bad that he is sick but I am not rich. What do you think?
This is only a realistic expectation if:
1) You paid the lawyer money upfront and you have not burned through that fee already (billable hours, etc.). It is reasonable to expect your lawyer to regularly give you an itemized accounting of what work has been done for you and what portion of the money is left, or how much is owed. Has he?
OR
2) Your lawyer charges a flat fee for divorce. Sane lawyers would only consider doing this for an uncontested divorce. You are going through a contested divorce. You might have *thought* you were going through an uncontested divorce, but your inability to come to an agreement has changed that.

Refer to the agreement that you signed when you retained the lawyer.
 

quincy

Senior Member
A client is generally entitled to a refund of paid-in-advance attorney fees that are unearned, this absent a written agreement that clearly indicates the money is earned upon receipt.
 

mshockey17

Junior Member
hmmmmm.... are these replies all from lawyers? ...lol, I was hoping that someone would agree with my perspective.
 

quincy

Senior Member
hmmmmm.... are these replies all from lawyers? ...lol, I was hoping that someone would agree with my perspective.
No one here has read your contract with the attorney and we do not know whether he has earned all of the money he has been paid.

If your attorney has earned all of the money paid, you are not entitled to a refund. If your attorney has not earned all of the money paid but there is a clause in your contract saying that all money paid is considered earned on receipt (and this clause is prominent), you are not entitled to a refund. If your attorney has not earned all of the money paid and there is no clause saying otherwise, you would be entitled to a refund of any unearned money.
 
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