Hello. I am currently involved with a prominent attorney in negotiations for settlement in a wrongful termination case based on both age discrimination and retalition (fired two weeks after asking specific questions regarding my profit-sharing defined contribution plan). One year pay was the original offer set forth by my attorney. It was counteroffered at about 5 months. I agreed except that I would not release my claims to my ERISA rights. My accountant has forensically analyzed the account but there are six months of missing monthly statements which I have documented from Morgan Stanley that the Plan Adminstrators refuse to release to me (these documents are involved in a transfer from Wells Fargo where the account was originally held). I have evidence from one end of year monthly statement from Morgan Stanley that was released to me that contributions were made to the account; however, they were not reported on the Form 5500 and my contribution was not made. Also, they will not provide me with a missing EGTRRA statement when they changed to Safe Harbor Contributions rather than discretionary employer contributions ( I requested this since the year is in question according to codes reported on the Form 5500 and different Plan Documents provided to me). To make a long story short, besides age disrimination, I was wrongfully terminated after 8 years of employment due to retaliation based on the fact that once I started asking specific questions regarding my pension and found these answers(which indicate breech of fidiciuary duty, not meeting audit waiver conditions, and IRS fraud to name a few), I was labeled as a potential whistleblower. My question is related to my attorney. In order to settle out of court, he asked the attorney representing my previous employer for the missing documents in order to settle. I was accused by the other attorney as acting on a conspiracy theory and I would be forwarded the documents. Five weeks have passed, and the opposing attorney after numerous excuses now claims he has the documents but is trying to get them personalized. I want my ERISA rights enforced and I have been trying to obtain these documents through all of the formal protocol(3 written requests, cerftified mail... since Nov., 2011.) Now my attorney is allowing him to continue to ignore my ERISA rights in order to avoid litigation. Are there any ethical issues involved? I suspect that the attorneys ar friends due to converation and previous office locations. What do you suggest? I am losing my patience. Thank you for your time. Susan
State/Country relating to question: New Jersey
I have a prominent attorney representing me.
Hi Susan. Sorry to hear about this difficult situation.
I think you are safe trusting your attorney to do what is in your best interest. Sometimes attorneys have ways of working through things that seem weird to the rest of us (although I am an attorney...).
What you should probably do is ask your attorney for a meeting where he/she can explain to you exactly how his/her actions are protecting your interests in preserving your ERISA rights.
My concern is that he has it made it clear that he does not want to litigate and the opposing has been given too much time to change the documents.
Another thing to keep in mind is that your attorney owes you a duty to act in your best interest.
I understand bu since he has made it clear that he will not litigate, where are my best interests?
That he does not want to litigate is not unusual and may be in your best interest since litigation can take a very long time and may not result in a better outcome than patient negotiations.
Also, he can clearly see that my ERISA rights are being violated and not doing anything about it?
You can fire your attorney any time for any reason.
Have you told your attorney that you are frustrated?
I understand the cost analysis facto in litigation but just to give you an example, I was given 29 monthly statements from the previous funds in 3 days.
I have told them and I almost feel like he wants me to fire him, but then where do I stand with the opposing attorney with the offer still on the table?
Again, you could ask (demand) that your attorney explain to you exactly how he is protecting your ERISA rights. But if you think "foot-dragging" is costing you a resolution, then you should communicate that to your attorney.
Is he protecting my ERISA rights?
What do you mean by that?
What ERISA right(s) are being compromised by your attorney? What is he trading away in order to reach a settlement?
Knowing that my attorney has documentation that the Plan Administrators have refused to authorize release of monthly statements which I am entitled to (to meet audit waiver conditions) and here the opposing attorney is again violating my rights to receive these docyuments.
He is trading the "smoking gun" contained in these documents which was cause for wrongful termination in retaliation.
Do you want documents or money? Your attorney may think that the documents are less important than money and may be thinking that letting the "rights" slide will get you a better settlement in the long run.
If you want both, which is reasonable, tell your attorney that.
Am I or my attorney in any kind of ethical dilemma since these documents have evidence of IRS fraud and ERISA violations?
Tell him to tell the other attorney that you are out of patience and you are going to get a litigator if they don't produce the documents you want and a fair settlement in a time frame you set.
I see... they are covering their butts so to speak.
So if you were in my shoes, what would you do? I have already presented to my attorney that I would go away if the original one year pay was settlement but I was I wrong or unethical to present this?
Was I Wrong I ,eant?
Also, you should know that the opposing attorney thinks he is litagating(bluff).
Let's try this. What do you want? What would satisfy you so that you could move on?
Sorry if I'm being dense, but this is complicated and I'm trying to help you think through your dilemma.
I know it is hard to ignore the attorney "games" and delays, but I've found a clear statement of one's interests can be very clarifying for everyone.
This plan is disquailfied if I report to DOL and/or IRS and I lost my job and had my outstanding, unblemished reputation of a 30 year career damaged. What woould you do?
If you want to settle, you are looking forward. If you want to fix past wrongs, then litigation may be the best option. Does that make sense?
I know what you are saying but I am confused since my lawyer is acting in a bluff.
So you are concerned about your reputation and fair compensation?
Have they offered anything that would address the issues related to your professional reputation?
Is it unreasonable or unethical for my lawyer to ask for a year pay for settlement? fortunately, I was rehired by a previous employer where I don;t have to explain. I asked for a letter of recommendation but they changed there policy after my request and said verbal only by the employer. I just have to hope to keep my present job.
The thing is, knowing there is fraud, may not do you any good if those who should care about the fraud don't or if the fraud is corrected by the time you get around to complaining about it. In other words, it may not be worth your time and effort to address that if it doesn't get you anything to satisfy your interests.
So what do you advise?
Your attorney has a duty to you to only make or accept offers that you agree with. If he does otherwise, without consulting you, you could file a bar complaint against the attorney. But again, how does that further your interests? If you are interesting in correcting wrongs, then a bar complaint may be what you need to do. On the other hand, if clarifying your interests with the attorney puts more money in your pocket and helps you move on, then maybe that's the best approach.
I would advise a meeting with your attorney where you tell him EXACTLY what you want. How much you will accept to settle (money and/or documents) and when that needs to happen. And tell him what exactly you will do if that does not happen.
Are you saying that I do have a bar complaint right now as I suspect since my attorney is not protecting my ERISA rights?
Please be candid with me since the emotional and physical trauma from this (I barely sleep) is killing me.
If your attorney is making offers to settle your case without your consent, if he is failing to protect your rights (if you have specifically asked that those rights are protected) you may be able to make a bar complaint. However, it is possible that your view of your rights is not accurate and your attorney may be doing things right.
Are my ERISA rights in violation?
Losing sleep and stress are not good. It sounds like you want this behind you. Is that accurate?
I do not know enough about your case to say whether your ERISA rights are being violated. That is a question for your attorney. Is he working on a contingent fee basis?
My advise to you is this. Make an appointment with your attorney. Tell him exactly what you want to happen and when. Then, if he doesn't do what you want (or take other satisfactory steps toward making it happen), you should consider finding a new attorney.
Of course, but I am a Health Care Professioanl and extremely ethical. I understand what you are conveying, and I will try to make it clear with my attorney but based on what I just told you knowing that the Plan Adminstrators are not authorizing release of these documents and my attorney has that in writing from Morgan Stanley and the opposing attorney is refusing release of these documents even though he has them and my attorney knows this, are my ERISA rights in violation? Yes, this is a contingent fee basis.
Okay. What does it mean to you if your ERISA rights are being violated? More money?
No. Unethical behavior on the part of both attorneys?
If your right are or are not being violated, you want a settlement, right?
Unethical behavior is something to complain to the New Jersey Bar about. It will not get you money. But it may give you peace of mind.
Of course I want a settelment and put this behind me, but I would appreciate a straight answer. Are both attorneys in violation of my ERISA rights? Did you just answer that?
Although you could hire another attorney and sue your current attorney for malpractice. But that requires proving that you would have won if the case were to go to trial.
I am not interested in a malpractice suit. I am only interested in ERISA rights which got me fired in the fist place.]
Do you understand my ethics here?
I'm sorry, Susan, I don't know enough to say whether or not your rights are being violated. It sounds like you are quite certain that they are. If you are right then you may have additional claims against your attorney (not the other attorney since he is adverse to you). But whether that gives you the relief you want or need is for you to decide.
I do. You raised ERISA issues. You got fired. Now they are treating this situation as finding out how much money to pay you, without vindicating your reputation and personal ethics. They did wrong. You caught them. Then, they did you wrong. They know it. Now they are dragging their feet and the attorneys are making money while you suffer. You are in a very tough situation. I advise you to take a firm stand with your attorney and tell him what he needs to do for you to make you happy.
I didn't know the first thing about ERISA until I was fired but I educated myself. I am appalled that based on the simple facts that I gave you that you, a professional attorney, cannot clearly see that my ERISA rights are in violation by everyone involved. I don't mean to be rude, but I just want a professional answer.
Okay. We have been chatting almost an hour. Sorry if you're not satisfied. Good Luck with everything. I hope it works out for you.
Please don't take offense. I am just frustrated. There is so much more to this story, and I am exhausted.
I am not offended and I definitely sense your frustration. And it is the "so much more" that keeps me from answering your question directly. That is what your attorney should be doing. If he's not, I'm sorry. And that is why I offer the advice to speak directly to your attorney, if he doesn't satisfy you, find another. And sensing that you are exhausted is why I advised you to look forward, toward a resolution so you can move on.
Whatever happens, thanks for using JustAnswer. If you want another expert to answer your question, you can "relist" your question after our chat ends. Either way, I wish you the very best.
Thank you for your time. I have to work in the morning and should try to sleep. I will contact my attorney and tell him once again, to have the opposing attorney either surrender the documents in their original with the 5 month settlement or renegotiate to keep the "smoking gun" and give me the full year settlement. Is that ethical and reasonable?
That sounds very reasonable and ethical to me. Take care and I hope everything works out for you. Take care.
Thank you again and goodnight.
I am an attorney with experience helping people resolve employment related problems.
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