Overbilling

[quincy]

I definitely interpret the wording of the agreement differently than you do, but it is the exact wording of the agreement, and your reasonable understanding of it, that will be the crux of your court argument. It can also be an advantage to you in any argument if this particular portion of the agreement was "hidden" in the contract somewhere and not prominently placed, say, above the space for your signature.

Often an attorney will have a client initial any potentially confusing provisions of a contract, to indicate that this provision has been explained and is understood by the client. If you initialed these terms of the agreement, this definitely works to your detriment.

In my reading, the "fee" is the $1500 retainer fee. The agreement you signed appears to me to be rather clear that the retainer fee of $1500 has already been earned. It is earned immediately upon payment and, as an earned fee, it would not be refundable. It belongs to the attorney. If I earn $10, I am not going to give you back the $10 - it is mine because I earned it. But, then, I am not the judge you will be facing in court.

As to Board Decision 16 that you cited, it says that an attorney should deposit "any refundable retainer" into the attorney's escrow account. It says that "where 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..." Again, however, the agreement you signed stated the retainer was already earned - and, as an earned fee, it would not be refundable.

Your case will certainly center on the interpretation of those two sentences in the agreement you signed but, with contracts, it is generally expected that a person knows and understands what they are signing before signing. Any questions about the wording should be asked, and the answer explained to a person's satisfaction, prior to signing. Once signed, it is considered to be, absent any evidence to the contrary, a valid and binding contract.

If you thought the two sentences in the agreement very clearly stated that the fee was "earned" but that you were still entitled to a refund of any amounts not used or used in ways you did not intend, well, I guess you have to hope that the court sees these two sentences and your agreement with the attorney the same way.

I wish you luck.


As an additional note: I would NOT call the attorney unethical, a shyster or whatever other colorful terms were used by latigo, as terms like this can be viewed as defamatory and can result in a defamation claim being filed against you.

 

[You Are Guilty]

While I agree with quincy's interpretation of the "contract", I respectfully disagree as to the attorney billing you for time spent on your complaints of his legal bills. This "fee on a fee" (as its typically known) is pretty much prohibited across the US these days, albeit by case law. It would behoove you to check to see if this is true in your jurisdiction.


Incidentally, this is in not "malpractice". Fraud? Maybe. Malpractice? No.

 

[blueturnaround]

Thanks. Lets all just wait and see what happens. My court date is on March 10th. I mailed in the complaint a few days ago.

No worries, I'm a professional so I did not slander or libel this guy in any way. However, I will show up in court like a slovenly beggar (as I'm told that this is an advantage in Philly courts),

However, I do question his charges... I mean....he does need to explain to me why he billed me for emails that don't exist, how it takes 30 minutes to mail a first class letter, and why he did things I explicitly told him not to. According to rule Professional Conduct §1.15! Check me out, I'm Matlock! Err Perry Mason.

P.S. Please, if anyone has something I can print for:
Anonymous, No 98 DB 92, 23 Pa. D&C 4th 452 (1994) and PBA Formal Opinion 95-100.

That'd be very much appreciated. I think the fact that those documents set the threshold of "clear and unambiguous language" is a good thing for me. And no, I did not initial. It was not spoken about, nothing of the sort that "the fee is the retainer and it is non-refundable". The conversation was more like "you pay $1500, and we'll give you 6 hours of diligent work".

 

[quincy]

You mean you don't bill for that, YAG?

Thank you for the correction. Although I really didn't intend to mean that an attorney can ethically bill for time handling complaints about his billing, and I specifically added a "" to indicate I was not serious, I understand that my intent was not clear, the statement was poorly worded, and I should have spelled out that I was not serious. I have deleted the small portion you objected to.

I agree with you that there is no indication of malpractice, at least based on the facts as presented here. I am also finding it hard to see any fraud.

Edit to add: I just saw your latest post, blueturnaround. I don't think I have an online source for you that enables you to print off the material cited. Maybe YouAreGuilty has one. But I will see what I can locate and will post back.

By the way, I question your belief that "dressing down" helps in Philadelphia courts - on the contrary, I think most judges like their courts to be respected, all the way down to the attire of those appearing in court.

 

[blueturnaround]

You mean you don't bill for that, YAG?

Thank you for the correction. Although I really didn't intend that an attorney can ethically bill for time handling complaints about his billing, and I specifically added a "" to indicate I was not serious, I understand that my intent was not clear, the statement was poorly worded, and I should have spelled out that I was not serious.

I agree with you that there is no indication of malpractice, at least based on the facts as presented here. I am also finding it hard to see any fraud.

Edit to add: I just saw your latest post, blueturnaround. I don't think I have an online source for you that enables you to print off the material cited. Maybe YouAreGuilty has one. But I will see what I can locate and will post back.

Again, I see this as an uphill battle for you. I hope the attorney you are up against is a despicable character - that might make it easier for you (not a serious statement).

By the way, I question your belief that "dressing down" helps in Philadelphia courts - on the contrary, I think most judges like their courts to be respected, all the way down to the attire of those appearing in court.

Thank you**************.So its ok to bill for things that don't exist? Its ok to say that it takes 30 minutes to put a stamp on an envelope!? Its OK to bill for things that I had told him NOT to do (in writing)? That makes me mad....

 

[quincy]

I think you may, indeed, have good reason to be angry, blueturnaround. And, no, an attorney should not inflate his costs and bill for 30 minutes just to stamp an envelope.

An attorney should be able to reasonably account for every penny spent of his client's money. But it is important to remember that an attorney's time is worth a lot. While drafting and mailing a letter may seem a simple task, it still takes time - and this time can legitimately be billed to the client all the way down to the stamping of the envelope.

Your biggest problem, as I see it, is that the attorney has an agreement, signed by you, stating that the $1500 has already been earned.

I will be interested in hearing how your March 10 court appearance goes.

 

[You Are Guilty]

Don't know if this is what you're looking for, but at a glance, it seems to be on point:
http://www.paiolta.org/AttorneyComp/handling.htm

And I don't know whether the Ethics Opinion cite is good - very unlikely there were 100 of them issued in 95. That said, they can all be found here:
http://www.philadelphiabar.org/page/EthicsOpinions?appNum=1

Good luck.

 

[quincy]

Blueturnaround, you may find it helpful to review Laureen Ryan v Butera, Beausang, Cohen & Brennan, et al, 193 F.3d 210 (3rd Cir 1999). This is available to read online and it will show you how Pennsylvania courts look at nonrefundable retainers.

I suggest you concentrate on the "Discussion" portion and on the information provided on McKenzie Construction, Inc v Maynard, 758 F. 2d 97, 101-02 (3rd Cir 1985) - the "McKenzie Standard" - and on General Retainers versus Specific Retainers.

I still believe you will have a hard time showing that any part of the retainer you paid is refundable, based on the wording of the agreement you signed, however you may find some arguments in Ryan that you can use to support your contention that the money you paid to the attorney should be refunded.

 

[blueturnaround]

Thanks for the help. But I disagree 100% that the language in the fee agreement is clear and unambiguous. If one intended to be unambiguous, a line "this fee is a non-refundable retainer" should be added. Or he should have made me initial by that line. Instead it is hidden in a compound sentence saying this fee is not contingent upon the outcome of the case.

Actually, I don't see how you could possibly interpret it as a non refundable retainer. But I guess that is for the courts to decide.

P.S. the contracts in the above cases given (thank you for providing those) have "All fees paid as of the termination date shall be non-refundable." written in the contract....now that's what I call clear and unambiguous.

 

[quincy]

The "clear and unambiguous" argument is one that you will be using, blueturnaround, so I hope for your sake that the court sees it your way. You may also want to argue the "ethics" of such a clause, although it seems the Pennsylvania courts have already made clear in their decisions that these clauses are permissible.

I do know that, of the nonrefundable retainer clauses I have reviewed recently, most that have been upheld have made it clearer in the wording than yours, so that can be a factor in your favor.

In a 2008 Michigan Supreme Court case, for instance (an ethics case), the wording of the agreement under discussion stated that: "Client understands that NO portion of the MINIMUM FEE referred to above [$4000 retainer] is REFUNDABLE to the client under any circumstances" (Grievance Administrator v Cooper).

It has been ethics arguments over the inclusion of such clauses in attorney-client agreements that have caused many states to no longer find them permissible. Pennsylvania and Michigan, however, still recognize them.

At any rate, and again, I wish you luck on March 10. Please post back.

 

[blueturnaround]

UPDATE:

The defendant filed for an extension. The new court date is May 11th, 2011. I'm concerned that since he is an attorney...the courts will continue to grant him extensions. I'll look into it if the court grants another one...usually they only allow one without a "good reason".

Also, I found the guy via:



I wrote a review on there....all truthful. He threatened to sue me for defamation. Which I found interesting, since the information is all truthful and based on his invoices. I think he was just mad. As an attorney, I hope that he would realize he has no case. I amended it slightly just to make sure...adding in the words "allege" and "opinion".

 

[quincy]

ACK! Your review is NOT all truth and opinion, blueturnaround. I see that you already edited your review once on the attorney review site - but it definitely needs more editing, if not deleting entirely. You should also delete the link to the attorney's site from your post above.

The attorney can most certainly sue you for defamation and he could have a very good chance of winning such a suit.

You stated that the attorney was "only good for low level paperwork" and had "poor knowledge." You also claim that he has "charged you for items that do not exist." Those comments impugn the attorney's skill and his honesty and can be seen as defamatory per se in many states. Defamatory per se statements are defamatory on their face and they presume reputational injury. Damages can be awarded on this presumed injury alone. Using the word "allege" and saying something is an "opinion" does not make a defamatory statement any less defamatory.

I will re-familiarize myself with Pennsylvania defamation law and post back when I can.

While you may be able to support as truth the overcharging (or double billing) after a decision has been made on the retainer and the contract you signed, your other comments go well beyond your own experience and generalize about the attorney and his practice as a whole. The review can most certainly be seen as defamatory.

 

[blueturnaround]

From what I understand. The truth is an absolute defense against a defamation charge. I believe in PA that the claim must be false. I say "in my legal complaint, I allege the following..." This is 100% true.

As for the "poor knowledge" & me saying his core competency is "low level paperwork".... they are not presented as "factual"...which is a requirement for defamation (from my understanding). Opinion stated as such is a defense.

If you find something quincy, I'll look at it and take it under advisement. But I hope it's not your attorney frathood coming out....you know..."don't hang one of your own" type of thinking.

I also gave the guy a chance to tell me what he wanted taken down and he responded with a "I'll see you in court" threat via email. Frankly, I don't see how he can prove damages either.

P.S. Quincy, what isn't truthful?

 

[Proserpina]

From what I understand. The truth is an absolute defense against a defamation charge. I believe in PA that the claim must be false. I say "in my legal complaint, I allege the following..." This is 100% true.

As for the "poor knowledge" & me saying his core competency is "low level paperwork".... they are not presented as "factual"...which is a requirement for defamation (from my understanding). Opinion stated as such is a defense.

If you find something quincy, I'll look at it and take it under advisement. But I hope it's not your attorney frathood coming out....you know..."don't hang one of your own" type of thinking.

I also gave the guy a chance to tell me what he wanted taken down and he responded with a "I'll see you in court" threat via email. Frankly, I don't see how he can prove damages either.

P.S. Quincy, what isn't truthful?

blue, if the statements are deemed to be defamatory per se, the attorney doesn't NEED to prove damages....

 

[blueturnaround]

blue, if the statements are deemed to be defamatory per se, the attorney doesn't NEED to prove damages....

And why is "truth" not a defense against a per se defamation suit?

So basically, anyone can sue for defamation after receiving a bad review and win...even if the information in the review is 100% true and can be proven?

That makes no sense to me.