Overbilling

[blueturnaround]

What is the name of your state (only U.S. law)? PA

I retained an attorney to do a collections case. The fee agreement states:

"we require a $1500 retainer to begin working on your matter and you will be billed at a rate of $250 per hour. This fee is deemed earned as of signing of this agreement and is not contingent upon the outcome of the case"

I signed it. He's burnt through the 6 hours and he's done all of write one subpoena and one interrogatory. I had specifically asked him NOT to do an interrogatory because that would be a dead end (i.e. the defendant would not respond and the sanctions process would cost more than would be recovered). They did it and billed it anyway. This request to NOT do an interrogatory is in writing via an email.

In the bill he gave me asking for more money to continue the case, he itemizes the work he's done so far and how long each action took. He claims he drafted 2 subpoenas and 2 interrogatories. I requested him to explain himself and he emailed the entire case file. Despite billing for the "creation" of 2 subpoenas, there is only one in the case file with one subpoena number. There is also only one interrogatory.

Also, he billed me at a rate of .2 for reading emails that don't exist. He billed me for writing me emails that don't exist. He also charged me for 30 minutes for mailing a letter. Not writing it, just mailing it. He billed for things that did not exist and there is absolutely no record of (and there should be...they are emails). Also, how does mailing a letter take 30 minutes??

Now the fee agreement says "earned upon signing"....but this seems wrong to me. Is this contract nullified due to fraud? Based on these actions, if the judge finds in his favor....a contract like this could allow one to get a signature then do nothing. We should all get into that game of legal fraud if this is justified by bar associations and judges.

The attorney will not respond to my questions and said he will not represent me anymore. Should I file a suit to recover some money? I've written subpoenas & interrogatories myself....that DOES NOT take 6 hours.

 

[Dave1952]

If you are unhappy with your attorney and he has notified you that he will no longer represent you in this debt collection then get a final accounting, get your case fie, pay the bill, and find another attorney.
You certainly may complain to the Penn. Bar about the billing issue

 

[latigo]

Blah, blah, blah . . . pay the bill ... blah, blah . . .

Pay the bill? In a sow's eye, you flake!

If as is represented to us, the shyster has then committed unconscionable acts of professional overreaching verging on attempted larceny and warranting severe disciplinary action!

His billing should not be paid. Not one cent of it!

Instead the victim should submit a formal complaint - not to the PBA - but to the Disciplinary Board of the Supreme Court of Pennsylvania!

Here is the contact:

John L. Doherty
Union Trust Building, Suite 400
501 Grant Street
Pittsburgh, PA 15219
Phone: (412) 565-3173
Fax: (412) 565-7620
_________________________

D: Why don't you find a nice lonely housewife’s chat room where you can prattle away without harming anyone?

 

[blueturnaround]

Pay the bill? In a sow's eye, you flake!

If as is represented to us, the shyster has then committed unconscionable acts of professional overreaching verging on attempted larceny and warranting severe disciplinary action!

His billing should not be paid. Not one cent of it!

Instead the victim should submit a formal complaint - not to the PBA - but to the Disciplinary Board of the Supreme Court of Pennsylvania!

Here is the contact:

John L. Doherty
Union Trust Building, Suite 400
501 Grant Street
Pittsburgh, PA 15219
Phone: (412) 565-3173
Fax: (412) 565-7620
_________________________

D: Why don't you find a nice lonely housewife’s chat room where you can prattle away without harming anyone?

Thanks for the reply....I don't think the first poster read my original post. He told me to do things that have already been done and was stated as such.

Anyway, he's in district 2...
Disciplinary Board of the Supreme Court of Pennsylvania - District Offices

The case he was working on was in district 1. Also, the contract took place in district 1. Who should I contact?

Also, he has my money...he has it as the retainer. Can I recoup that money? The fee agreement says the money is "earned" upon signing.... That was my main issue. Is this a breach of contract? I.e. fraudulent billing? I offered him a settlement...paying him for the interrogatory (only one of them), the subpoena, and the other things he had a record of. He would have to return 50% of the retainer. He basically said "go F yourself". You signed the contract.

 

[Willlyjo]

Pay the bill? In a sow's eye, you flake!

If as is represented to us, the shyster has then committed unconscionable acts of professional overreaching verging on attempted larceny and warranting severe disciplinary action!

His billing should not be paid. Not one cent of it!

Instead the victim should submit a formal complaint - not to the PBA - but to the Disciplinary Board of the Supreme Court of Pennsylvania!

Here is the contact:

John L. Doherty
Union Trust Building, Suite 400
501 Grant Street
Pittsburgh, PA 15219
Phone: (412) 565-3173
Fax: (412) 565-7620
_________________________

D: Why don't you find a nice lonely housewife’s chat room where you can prattle away without harming anyone?

Bravo...Bravo, latigo!! As usual, your post was the result of well researched and well thought out as to the text response.

Surely this lawyer has gone beyond the boundaries concerning legal fees! The Op might be able to recover more than just his retainer since in many states, he could be sued for legal malpractice for such unconscionable behavior.

 

[mistoffolees]

Bravo...Bravo, latigo!! As usual, your post was the result of well researched and well thought out as to the text response.

Surely this lawyer has gone beyond the boundaries concerning legal fees! The Op might be able to recover more than just his retainer since in many states, he could be sued for legal malpractice for such unconscionable behavior.

Here's a good rule of thumb - any time willyjo agrees with you, you should probably re-think your position.

In OP's case:

- An agreement that says the retainer is earned as of signing is not illegal, nor unethical. I would probably not agree to it, but since you agreed to it, you're stuck.

- All attorneys have minimum charges for even trivial tasks - anywhere from 0.1 hour to 0.25 hour or more - for answering the phone, reading an email, and so on. That's not illegal or unethical. Again, if the number was quite high, I wouldn't have signed.

- The first allegation that's problematic is him charging for reading emails that don't exist. Do you know that these emails don't exist? Perhaps the opposing attorney sent an email? Or perhaps you sent one and forgot?

- In addition, if the attorney was told not to do an interrogatory and he did so, that might be a problem. But, again, can you prove that you told him not to do it? And can you prove that it was unnecessary?

Ask for a detailed accounting. Then choose a new attorney. But don't count on seeing any of your money returned. It's easy to eat up $1500 in no time.

 

[justalayman]

=mistoffolees;2747439]
- An agreement that says the retainer is earned as of signing is not illegal, nor unethical. I would probably not agree to it, but since you agreed to it, you're stuck.

Regardless of all the items that may simply be how things work, the attorney obviously screwed up with this:

He claims he drafted 2 subpoenas and 2 interrogatories. I requested him to explain himself and he emailed the entire case file. Despite billing for the "creation" of 2 subpoenas, there is only one in the case file with one subpoena number. There is also only one interrogatory.

Attorneys do not get to rape their clients and then stand on their contract as a defense.

 

[blueturnaround]

Here's a good rule of thumb - any time willyjo agrees with you, you should probably re-think your position.

In OP's case:

- An agreement that says the retainer is earned as of signing is not illegal, nor unethical. I would probably not agree to it, but since you agreed to it, you're stuck.

- All attorneys have minimum charges for even trivial tasks - anywhere from 0.1 hour to 0.25 hour or more - for answering the phone, reading an email, and so on. That's not illegal or unethical. Again, if the number was quite high, I wouldn't have signed.

- The first allegation that's problematic is him charging for reading emails that don't exist. Do you know that these emails don't exist? Perhaps the opposing attorney sent an email? Or perhaps you sent one and forgot?

- In addition, if the attorney was told not to do an interrogatory and he did so, that might be a problem. But, again, can you prove that you told him not to do it? And can you prove that it was unnecessary?

Ask for a detailed accounting. Then choose a new attorney. But don't count on seeing any of your money returned. It's easy to eat up $1500 in no time.

As for proof that the I was billed for emails that don't exist, yes. They do not exist...its pretty easy to check the inbox / sent box....

In my OP, I had said I have it in writing (via email) that I requested the interrogatory not be made. As for unnecessary, thats a pretty high burden of proof. But the interrogatories did nothing...they made no progress with them.

In fact, the only progress in this case was a direct result of MY actions, nothing by the attorney...not that that matters for what we are talking about....which is IF larceny voids the contract.

 

[mistoffolees]

As for proof that the I was billed for emails that don't exist, yes. They do not exist...its pretty easy to check the inbox / sent box....

Really? You have access to the attorney's inbox?

Are you the only person who is allowed to send the attorney email? Or is it possible that they received an email from the opposing attorney?

In my OP, I had said I have it in writing (via email) that I requested the interrogatory not be made. As for unnecessary, thats a pretty high burden of proof. But the interrogatories did nothing...they made no progress with them.

If you have written evidence that you asked that an interrogatory not be prepared, present it to the attorney's billing office and tell them to remove the charges for preparing and submitting the interrogatory.

In fact, the only progress in this case was a direct result of MY actions, nothing by the attorney...not that that matters for what we are talking about....which is IF larceny voids the contract.

It's not larceny by any stretch of the imagination.

Regardless of all the items that may simply be how things work, the attorney obviously screwed up with this:

Attorneys do not get to rape their clients and then stand on their contract as a defense.

I agree. IF it really is true that OP told the attorney not to prepare an interrogatory (before the work was actually done), then that was wrong. OP should request a refund for that portion of the attorney's time.

I'm just a little hesitant to accept that without hearing the other side of the story, though.

 

[blueturnaround]

Really? You have access to the attorney's inbox?

Are you the only person who is allowed to send the attorney email? Or is it possible that they received an email from the opposing attorney?



If you have written evidence that you asked that an interrogatory not be prepared, present it to the attorney's billing office and tell them to remove the charges for preparing and submitting the interrogatory.



It's not larceny by any stretch of the imagination.



I agree. IF it really is true that OP told the attorney not to prepare an interrogatory (before the work was actually done), then that was wrong. OP should request a refund for that portion of the attorney's time.

I'm just a little hesitant to accept that without hearing the other side of the story, though.

Yes, I have access to the inbox. He sent me the case file. I am the only one who can send email to the attorney. The defendant does not have an attorney and his address was unknown for quite some time. The guy is in hiding. And also, I repeat...I have the case file....

I have presented the written evidence for both the interrogatories & the non-existent emails....the attorney will not respond. I wrote this in my original post....

The back story is that the firm owner (its a small firm) wasn't the main attorney on the case. The attorney working on my case left for another job. The firm owner generated the invoice on his own AFTER the guy working on my case left. I think he generated the invoice because he NEEDED money to review my case, get up to speed on it, etc....he would need to spend EXTRA time on it (because the associate left) which he wanted to be reimbursed for.

I spoke with the guy working on my case (after he left)...and he told me that the invoice that was sent to me was done without his knowledge.

 

[Willlyjo]

Here's a good rule of thumb - any time willyjo agrees with you, you should probably re-think your position.

In OP's case:

- An agreement that says the retainer is earned as of signing is not illegal, nor unethical. I would probably not agree to it, but since you agreed to it, you're stuck.

- All attorneys have minimum charges for even trivial tasks - anywhere from 0.1 hour to 0.25 hour or more - for answering the phone, reading an email, and so on. That's not illegal or unethical. Again, if the number was quite high, I wouldn't have signed.

- The first allegation that's problematic is him charging for reading emails that don't exist. Do you know that these emails don't exist? Perhaps the opposing attorney sent an email? Or perhaps you sent one and forgot?

- In addition, if the attorney was told not to do an interrogatory and he did so, that might be a problem. But, again, can you prove that you told him not to do it? And can you prove that it was unnecessary?

Ask for a detailed accounting. Then choose a new attorney. But don't count on seeing any of your money returned. It's easy to eat up $1500 in no time.

The fact of the matter is: based on the Op's post, this lawyer is liable for legal malpractice. Latigo's post was right on! Since he/she seems to be the one in this thread with the most common sense, I'll listen to what he has to say.

As for you, your questions are not going anywhere toward supporting what you say. Everyone in this thread disagrees with you except Dave (that speaks for itself), so I guess I'm not the only one on the opposite side of your opinion. So I guess your rule of thumb remark looks stupid. Also, even though your subtle way of disagreeing with Latigo was entertaining, I don't think he was entertained.

 

[quincy]

The retainer given the attorney would not have to be returned, in part or in whole, if blueturnaround signed an agreement saying that the retainer was nonrefundable. See In Re Anonymous, No 98 DB 92, 23 Pa. D&C 4th 452 (1994) and PBA Formal Opinion 95-100.

The PBA Formal Opinion says that if there is a clear and unambiguous written statement or agreement signed by the client, stating that it is understood the retainer is nonrefundable, the attorney does not have to refund any unused funds.

The basic rules on fees are covered under Pennsylvania's Rules of Professional Conduct §1.15. Under this Rule, any funds prepaid in expectation of legal costs and expenses should be placed in a trust account for the client and any unearned funds returned, absent any agreement to the contrary. Because there is an expectation on the part of most clients that client money will be deposited in a trust account and any unused funds will be returned, any agreement between the attorney and the client that is contrary to this expectation and that says the funds are nonrefundable must be written in language so that is clear to the client that the funds are not refundable.

So, to answer one of blueturnaround's questions, the contract is NOT "nullified by fraud" nor would the attorney necessarily be a "shyster" who "committed unconscionable acts of professional overreaching verging on attempted larceny," nor would this be "legal malpractice," as stated by latigo and applauded and reiterated by Willlyjo. I tend to agree with mistoffolees' earlier rule of thumb and I will add a "rule of thumb" of my own: when a post has a lot of exclamation points dotting the post for no discernable reason, the advice is generally not advice you want to follow.

Blueturnaround read the contract, apparently understood the terms of the contract, and blueturnaround signed the contract. Contracts with nonrefundable retainers are permissible, as long as these terms are made clear, are unambiguous, and are understood by the client prior to signing.

If blueturnaround has questions regarding any additional billing, over and above the nonrefundable retainer, then he can certainly file a complaint with the Disciplinary Board but it appears, from what has been posted here at any rate, that he is NOT entitled to a refund of any part of his retainer, regardless of how these funds were used (or abused).

 

[blueturnaround]

The retainer given the attorney would not have to be returned, in part or in whole, if blueturnaround signed an agreement saying that the retainer was nonrefundable. See In Re Anonymous, No 98 DB 92, 23 Pa. D&C 4th 452 (1994) and PBA Formal Opinion 95-100.

The PBA Formal Opinion says that if there is a clear and unambiguous written statement or agreement signed by the client, stating that it is understood the retainer is nonrefundable, the attorney does not have to refund any unused or unearned funds.

The basic rules on fees are covered under Pennsylvania's Rules of Professional Conduct §1.15. Under this Rule, any funds prepaid in expectation of legal costs and expenses should be placed in a trust account for the client and any unearned funds returned, absent any agreement to the contrary. Because there is an expectation on the part of most clients that client money will be deposited in a trust account and any unused funds will be returned, any agreement between the attorney and the client that is contrary to this expectation and that says the funds are nonrefundable must be written in language so that is clear to the client that the funds are not refundable.

So, to answer one of blueturnaround's questions, the contract is NOT "nullified by fraud" nor would the attorney necessarily be a "shyster" who "committed unconscionable acts of professional overreaching verging on attempted larceny," nor would this be "legal malpractice," as stated by latigo and applauded and reiterated by Willlyjo. I tend to agree with mistoffolees' earlier rule of thumb and I will add a "rule of thumb" of my own: when a post has a lot of exclamation points dotting the post for no discernable reason, the advice is generally not advice you want to follow.

Blueturnaround read the contract, apparently understood the terms of the contract, and blueturnaround signed the contract. Contracts with nonrefundable retainers are permissible, as long as these terms are made clear, are unambiguous, and are understood by the client prior to signing.

If blueturnaround has questions regarding any additional billing, over and above the nonrefundable retainer, then he can certainly file a complaint with the Disciplinary Board but it appears, from what has been posted here at any rate, that he is NOT entitled to a refund of any part of his retainer, regardless of how these funds were used (or abused).

Thank you Quincy, that's an excellent post and very helpful to my original question. For this: http://www.paiolta.org/AttorneyComp/handling.htm

Wouldn't the retainer be considered #4 - funds received as prepayment of expected costs & expenses of representation?

I couldn't find a link to PBA 95-100 (a link would be much appreciated)....but here

http://www.philadelphiabar.org/page/EthicsOpinion96-7?appNum=1

It stated: "[W]here money belonging to an attorney is combined with fees not yet earned or with funds to be expended in the course of the representation, the attorney MAY NOT deposit the whole sum in either the general office account or an escrow account."

In my fee agreement, the funds in question (for my case) are "earned" because that is explicitly written. But they are also "funds to be expended in the course of the representation". The "earned upon signing" line is actually in the same sentence as the "we require a retainer of $1500 to start and will be billing at a rate of $250". The "earned upon signing" line is also followed by "this fee is not contingent upon the outcome of the case". It seems to me that a reasonable person could construe that to mean that the funds aren't contingent on the outcome of the case...not that the attorney is exempt from "RPC 1.15 and general law relating to fiduciary obligations".

In my contract, the section about fees is 3 sentences "We require $1500 to start and will bill at a rate of $250 per hour. This fee is deemed earned upon the signing of this agreement and is not contingent upon the outcome of the case."

Blueturnaround read the contract, apparently understood the terms of the contract, and blueturnaround signed the contract. Contracts with nonrefundable retainers are permissible, as long as these terms are made clear, are unambiguous, and are understood by the client prior to signing.

I would dispute that. It was my understanding that the $1500 would go towards 6 hours of work towards my case. 6 Hours were not done and not all 6 hours were towards my case. NOT that the attorney was entitled to the $1500 no matter what happened. I don't think a reasonable person would read & understand the 3 lines of the fee agreement that way.

....and Quincy, thank you for your help. It lets me be more prepared. Anyway, I already filed a small claims suit and a complaint to the Disciplinary Board. I will post a follow up on what happens. I have a feeling here in Philadelphia the judges have no love for attorneys who overbill....


P.S. http://www.paiolta.org/AttorneyComp/handling.htm on the first page it says "arrangement for a nonrefundable retainer must be confirmed by the CLEAR & UNAMBIGUOUS language of a written statement provided to the client or a written agreement between the attorney & the client."

 

[quincy]

It can certainly come down to how the contract was written as to whether any judge would find the terms of the agreement ambiguous enough to void the agreement. From your first post here, however, it appears you clearly understood the terms of the agreement prior to signing. This makes your odds of prevailing, and being entitled to a refund of any part of your retainer, iffy at best.

I agree with mistoffolees when he said that an attorney can eat up a client's money pretty quickly. ANY time used to further a client's case, even if it is just waiting around in a courtroom for a matter to be heard, can and often is billed. A motion, for example, can easily take 20 hours of an attorney's time when research, writing and filing time is taken into consideration. Any time you or anyone else spent on the phone with the attorney if it regarded your case, or any email you or anyone else sent the attorney if it regarded your case is also billed to you.

Regardless of what is done by the attorney to further your case, you agreed in writing that you would not have any unused portions of the retainer returned.

The only thing you may have a reasonable chance of fighting are billings over and above the retainer amount that could be looked at as double-billings. These additional amounts may not have to be paid if you can show that you were, in fact, double billed for something covered by the retainer.

But, sure, post back with what the results are of your small claims action and your complaint to the Disciplinary Board. I think you have a tough fight ahead in small claims, as the contract seems to me to be pretty straight forward, but tough fights are not always fights that are lost.

Good luck.

 

[blueturnaround]

Regardless of what is done by the attorney to further your case, you agreed in writing that you would not have any unused portions of the retainer returned.

Good luck.

I don't think I did agree that I would not have any unused portions of the retainer returned. And no, I didn't understand or agree to that.

Here't the actual language of the fee agreement:

"As we have agreed, we require a retainer of $1500 to begin working on the matter and you will be billed at a rate of $250 per hour. This fee is deemed earned upon signing of this agreement and is not contingent upon on the outcome of this case."

That is all thats written about the fees. To me, that doesn't constitute a "arrangement for a nonrefundable retainer must be confirmed by the CLEAR & UNAMBIGUOUS language of a written statement provided to the client or a written agreement between the attorney & the client."

To me, language in the fee agreement to says to the client (i.e. me)... "don't try to sue us for the retainer if we don't recover your money in this collections case"....NOT "the retainer is ours once you sign this agreement."