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ScottMalkinson

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

Back in Sept. of 2016 my former attorney and I went to court for an expungement/record sealing. At the end of November I hear back from the state police telling me that, in not the exact words, that things were mostly taken care of, but there were a few "MC" numbers that weren't sealed and DUIs were not sealed from my driving record. I called and informed my attorney of this. He said he would take care of the MC numbers but wanted to wait another month on the driving record.

After a month I checked and my driving record still wasn't taken care of so I called him back. He still had not taken care of the MC numbers and tried to avoid the driving record issue all together. When I brought it up, he responded by saying "well an employer might not even check". I thought that was ridiculous that he would say that. That's not the point. And an employer will check because I am trying to get a driving job, which I explained to him from day 1.

So he said to give him 2 weeks and he will call me back. He didn't call me back. He never did. So I called him. MC numbers still not taken care of, and again, tried to avoid the BMV record issue. When I brought it up, he said the BMV just isn't doing what theyre supposed to do and he will have to call and argue with them about it, which he would do in a few days. I gave him 2 weeks and called him back. He said he had finally filed the paperwork on the MC numbers but hadn't done anything about the BMV record. When I asked him when he planned on taking care of it, his response was "when I have time". I thought that was a ridiculous answer, so I fired him.

This was late January, 2017. He was just giving me the run around the entire time about it and I was tired of it. At what point does something become job abandonment? Do I have any grounds to get any of my money back?
 
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quincy

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

Back in Sept. of 2016 my former attorney and I went to court for an expungement/record sealing. At the end of November I hear back from the state police telling me that, in not the exact words, that things were mostly taken care of, but there were a few "MC" numbers that weren't sealed and DUIs were not sealed from my driving record. I called and informed my attorney of this. He said he would take care of the MC numbers but wanted to wait another month on the driving record.

After a month I checked and my driving record still wasn't taken care of so I called him back. He still had not taken care of the MC numbers and tried to avoid the driving record issue all together. When I brought it up, he responded by saying "well an employer might not even check". I thought that was ridiculous that he would say that. That's not the point. And an employer will check because I am trying to get a driving job, which I explained to him from day 1.

So he said to give him 2 weeks and he will call me back. He didn't call me back. He never did. So I called him. MC numbers still not taken care of, and again, tried to avoid the BMV record issue. When I brought it up, he said the BMV just isn't doing what theyre supposed to do and he will have to call and argue with them about it, which he would do in a few days. I gave him 2 weeks and called him back. He said he had finally filed the paperwork on the MC numbers but hadn't done anything about the BMV record. When I asked him when he planned on taking care of it, his response was "when I have time". I thought that was a ridiculous answer, so I fired him.

This was late January, 2017. He was just giving me the run around the entire time about it and I was tired of it. At what point does something become job abandonment? Do I have any grounds to get any of my money back?
I assume you waited the required length of time before applying for expungement of your various and assorted offenses? You can only receive an expungement once in Indiana and so all records that you want expunged must be cleared at the same time.

Although records can be expunged, new records can be generated that indicate records have been expunged - so the offenses that were expunged often need to be explained on certain employment applications.

You will need to read over your contract with your attorney to see if he is entitled to keep what you paid him.

Here for the benefit of others is a link to the law: http://iga.in.gov/static-documents/9/8/c/5/98c51072/TITLE35_AR38_ch9.pdf
 
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ScottMalkinson

Junior Member
I assume you waited the required length of time before applying for expungement of your various and assorted offenses? You can only receive an expungement once in Indiana and so all records that you want expunged must be cleared at the same time.

You will need to read over your contract with your attorney to see if he is entitled to keep what you paid him.

Yes, I met all the requirements. The judge granted the expungement. There never was a written contract, he just explained to me what he was going to do and I paid him. He explained to me that he would be able to get my BMV record cleaned up. I guess I should have requested some kind of breakdown of the payment, but I didn't even think of that. I don't deal with this stuff a lot so I trusted my attorney.
 

ScottMalkinson

Junior Member
I am in Indiana, by the way. Do you know if the Indiana BMV has a history of not complying with court orders on this type of thing? I cant understand why it wasn't expunged in the first place.
 

quincy

Senior Member
Yes, I met all the requirements. The judge granted the expungement. There never was a written contract, he just explained to me what he was going to do and I paid him. He explained to me that he would be able to get my BMV record cleaned up. I guess I should have requested some kind of breakdown of the payment, but I didn't even think of that. I don't deal with this stuff a lot so I trusted my attorney.
I can't believe how many people do not have their agreements committed to writing and signed by all parties.

Did the attorney charge a flat rate (one amount that was to cover everything)?

All of your records were eventually expunged?
 

ScottMalkinson

Junior Member
I can't believe how many people do not have their agreements committed to writing and signed by all parties.

Did the attorney charge a flat rate (one amount that was to cover everything)?

All of your records were eventually expunged?
Well like I said I don't deal with this kind of thing much. Lesson learned. Yes, he charged me $1300. That covered filing fees and his work. Yes, my criminal record has been expunged. He claimed he took care of the MC numbers, but I haven't actually checked myself. Ill have to run a background check on myself to be sure. The only thing that isn't taken care of is the BMV record, which he kept giving me the run around. I am waiting on this to be done for a driving job and he was making it pretty obvious that he was going to take all the time in the world to do this, if at all, so ive got someone else working on it.
 

quincy

Senior Member
Well like I said I don't deal with this kind of thing much. Lesson learned. Yes, he charged me $1300. That covered filing fees and his work. Yes, my criminal record has been expunged. He claimed he took care of the MC numbers, but I haven't actually checked myself. Ill have to run a background check on myself to be sure. The only thing that isn't taken care of is the BMV record, which he kept giving me the run around. I am waiting on this to be done for a driving job and he was making it pretty obvious that he was going to take all the time in the world to do this, if at all, so ive got someone else working on it.
The BMV record can be problematic for those holding commercial driver licenses (or hoping to have one) so perhaps that is what is causing the delay. Driving convictions are reported by a state to the CDL information system and the Federal Motor Carrier Administration. If you have already applied for a commercial license, you might find the driving convictions holding you back, even if Indiana allows for these convictions to be expunged.

With the $1300 flat or fixed rate fee, you could have a difficult time recovering any of this amount from your attorney. The amount charged does not seem to be unreasonable for the amount of time and labor required for expunging records. Although a written agreement would have been preferable, detailing for you what the attorney would do for the $1300, a written contract is not necessary if there is an understanding of what the money will cover. I think the attorney can probably support having earned the $1300.

As a note: The expungement law in Indiana is an unusual and confusing one. :)
 

ScottMalkinson

Junior Member
The BMV record can be problematic for those holding commercial driver licenses (or hoping to have one) so perhaps that is what is causing the delay. Driving convictions are reported by a state to the CDL information system and the Federal Motor Carrier Administration. If you have already applied for a commercial license, you might find the driving convictions holding you back, even if Indiana allows for these convictions to be expunged.

With the $1300 flat or fixed rate fee, you could have a difficult time recovering any of this amount from your attorney. The amount charged does not seem to be unreasonable for the amount of time and labor required for expunging records. Although a written agreement would have been preferable, detailing for you what the attorney would do for the $1300, a written contract is not necessary if there is an understanding of what the money will cover. I think the attorney can probably support having earned the $1300.

As a note: The expungement law in Indiana is an unusual and confusing one. :)
I haven't applied for a CDL or anything, so I don't think that was it. He was just trying to avoid doing it. At what point of someone dragging something out is someone entitled to some form of refund? Basically, what im asking is, how much time does an attorney have to do something before the client can take legal action?
 

quincy

Senior Member
I haven't applied for a CDL or anything, so I don't think that was it. He was just trying to avoid doing it. At what point of someone dragging something out is someone entitled to some form of refund? Basically, what im asking is, how much time does an attorney have to do something before the client can take legal action?
I can't tell you how much time is too much time for an attorney to complete a task. There are a lot of variables that must be considered. For example, when an attorney must rely on performance by someone else before he can act (like the state police, like the BMV), the timing is largely out of the attorney's control.

What most attorney professional rules say, including Indiana's professional rules (see Rule 1.3), is that an attorney must act with "reasonable diligence and promptness" when representing a client. This diligence and promptness can be most important when an attorney is up against an important deadline, like a statute of limitations. A delay in filing papers could cost a client their case.

In your case all I can say is that, if you think the delay in having your records expunged has affected you adversely, speak to your attorney. I recommend you make an appointment to see him (don't just call or email or drop by his office). Sit down with your attorney and during your scheduled appointment tell him your concerns. If you are not satisfied with the answers you receive, you can file a complaint with the Bar Association and you can seek a partial refund of the fee you paid. But, again, you should have a good reason for your complaint and/or the attorney should not have a good reason for his inaction.

Here is a link to the Indiana Rules of Professional Conduct and you can see what professional rules govern an attorney in your state:

http://www.in.gov/judiciary/rules/prof_conduct/

Good luck.
 
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