Hi Pat,I thought my problems were behind me and I have started my business once again Westernshade founded in 1897 by my Grandfather then changed to Joanna Western.I have kept the name Westernshade and primarily7 do my business from Asia.I am hoping you can give me some advise on how to solve my last dilemma.Some time ago I had resolved myself as difficult as it was to forget what happened in the past and devote my energies to future energies.But I find myself back in the middle through no fault of my own.If you could help me it would be greatly appreciated.Sir,On 5/2009 I signed a contract with my attorney, personally not his firm, to prosecute three lawsuits one was already filed when I retained him .The agreement called for a $40,000 one time payment 33-1/3% of any recovery to prosecute my claims..On 9/2010 the attorney withdrew.Two suits were never filed the third,already filed prior to his retention, needed two depositions and an order to compel accounting records.Neither were done in 17 months.I asked for $20,000 of the $40,000 back..He refused.I wrote to the ARDC four months after his resignation.Two months later out of spite he sues me for $100,000 based time he claims he spent on the case.I never received a bill during or after he was dismissed.In his motion to withdraw he did not claim I owed him anything.I was represented by an attorney who files a motion to dismiss.Denied.He resigns as he states he is a material witness.On 8/2011 I hire a new attorney he files a counter claim for $40,000To date the attorney I retained on 8/2011 has billed me $10,000. We have yet to depose the attorney who sued me.On our motion for production of documents the opposing attorney said we could find them in 25 boxes in his warehouse.Instead of filing an order to compel production of the documents my attorney said it would be less expensive to go through the boxes himself.The cost was $2200.We have discussed amending our counter claim or filing a malpractice suit.So far nothing has happened.The way I see this I have three options1.Do nothing and continue paying legal fees.2.Amend my counter claim for damages caused by my former attorney not prosecuting my three claims3.File a malpractice suitCan I file for a summary judgment without giving up my counterclaim or right to amend it.
Thank you for posting your question to JA/Pearl. Legal questions often take time for research or I may be offline so please be patient, I will reply.Hi FredGood to hear from you again. I have to run right now but I will reply back late this evening when I have time to review your question.
Attorney with experience in wills, estates and trusts
Can I file for a summary judgment without giving up my counterclaim or right to amend it.Yes you can file for a summary judgment as to his claims and the counterclaim would remain unless he also files for summary judgment and the judge dismisses everything. 2.Amend my counter claim for damages caused by my former attorney not prosecuting my three claims3.File a malpractice suitThose are really the same thing. To prevail on a malpractice suit you have to show that you won or would have won the lawsuits except for the actions of the attorney. If that is the case, then you can amend your answer and add that as another counterclaim, it would not be a new lawsuit. We have yet to depose the attorney who sued me.That seems to really be your next step and something that should be done as soon as possible. Two months later out of spite he sues me for $100,000 based time he claims he spent on the caseHe can't sue for more than the contracted amount so that should be sufficient grounds for summary judgment especially after he is deposed.
My attorney seems to be a nice man.I have sent him many many documents showing my attorneys malpractice over the last 12 months.He talks about amending the counterclaim and does not rule out malpractice but nothing happens.
I wasn't overly concerned about the time and had my business to occupy my thinking but I just received a bill for $4600 today and it woke me up.
$2200 was for going to the defendants warehouse to find documents instead of compelling him to produce them.
I can only imagine what this may cost of I do not force the issue.I will pay him but I must tell him what to do I think.I was hoping he would be telling me after receiving all of my documents and evidence.
I will pay him.I do not want another attorney.I have had enough.I just think he has other matters that are more important than mine.
If he believes I have a malpractice claim should he not suggest we meet and discuss the case with a malpractice attorney?
I need to move forward.I do not want to offend the attorney.We have had no disagreements but nothing has happened.His bill today woke me up today.
It is nothing other than a spiteful lawsuit after I wrote to the ARDC. A second attorney was a witness to my attorney stating if I settled the case he would receive nothing.
Please stick with me on this as I need some guidance but my actions will not be harsh just what a client is entitled to and entitled to know.
Thank you.Please give me your suggestion prior to me calling him.
If he believes I have a malpractice claim should he not suggest we meet and discuss the case with a malpractice attorney?I don't see why you would need another attorney. Your current one should be able to handle it. The only way to know is to ask him if you should amend your answer to include a claim for malpractice. The key is not whether the attorney did anything wrong, that is not necessarily malpractice. You have to actually win the lawsuits that he was handling for you. I need to move forward.I do not want to offend the attorneyI would think that you really need to discuss his plans for a deposition. It appears that is going to be critical and something that needs to be done as soon as possible. Unfortunately that will be even more expense. I really don't know what else to tell you at this point in time except to ask your attorney to give you his plans as to how he intends to proceed. Is he going to file for summary judgment, is he going to schedule the deposition, is he going to amend your answer to add a counterclaim for malpractice. It appears that you really need answers to those questions.
Pat sorry for all of my renditions of a email to my attorney.I just am not sure at if anytime he can say to me I am sorry but if you want to pursue that route you will have to find a new attorney.
Sounds good to me. As I said, the malpractice depends on the validity of the lawsuits that he was to handle for you. Have you actually filed a formal complaint with the bar? If you are going to add malpractice, that would be the first step. As you already know, an attorney can withdraw at any time but he can only charge you for work actually done not to exceed the contract.
Pat, if you dont mind I would like to show you a very simple portion of my retainer agreement I signed with my attorney.
On the suit trust suit on file he never got to discovery in 17 months.
Two depositions and an order to compel production of trust documents was my case 100% of the trust case.
My mother was mentally incapacitated when her trust was amended by my sisters.Removing my aunt as successor trustee and replacing her with them the current trustees (my sisters) who had not accounted for 18 years.
My attorney had the 8 page document neurological examination by the Neurologists and six witnesses all interviewed by him to show the lack of capacity to understand what my mother was signing.
The depositions would have removed my sisters as the successor trustees and the $500,000 of legal fees they withdrew as the fraudulent successor trustees would have had to be returned.Actually I have provable damages of $1.0M
The depositions were never taken in 17 months.
The trustees did not account for 18 years.Three months after we filed our lawsuit my sisters signed declarations stating that they had 18 years of trust accounting in their possession.$8.5.withdrawn during this time.That was the heart of our trust case along with the incapacity of my mother.My attorney had 15 months to file a motion to compel production of the trust accounting but never did.
In that same agreement,which was between me and the attorney individually,there is a clause stating he would prosecute on my behalf any estate related matters.I had several.
He had seven months to review my evidence.He did not read one.One week before the statute of limitations ran out he suddenly gave the case to the executor's attorney.It was a pour over will so I did not need an expensive attorney.The executors attorney was a bankruptcy attorney and had no experience in elder law.
He drafted a financial abuse,false imprisonment and abuse suit overnight in the Federal court trying to intervene in the existing case.Denied.
Same day filed the same complaint i the state court.Denied.Then he wrote me a letter stating my aunt was not damaged and as the damaged party I should file the suit.
Two weeks later without my knowledge my attorney jumped in filed an amended complaint in conjunction with the estate attorney.It contained no exhibits or any of the evidence the attorney had or affidavits or depositions.The court denied their motion.With the knowledge of the executor the case was voluntarily withdrawn
Please give me your opinion on the language of the estate claims.My aunt was not a party to the retainer agreement.My attorney on my behalf breached his fiduciary duty to me by not filing these claims on my behalf.Your opinion would be greatly appreciated.
Here is the language in my retainer with my attorney as an individual.His suit against me is not as an individual but an LLC.
"Johnson agrees to prosecute claims against sisters in case XXX filed in the district court of Chicago. (accounting case already filed)
As well as claims related to the estate of my mother against any other persons who may have liability related to said matters"
This retainer agreement was drafted after I personally reviewed each steps of the financial abuse with documents, the abuse and death of my mother.
There was never any mention of the executor as he knew I incurred the damages.By giving this case after 7 months of doing nothing to the executors attorney,who lost three motions,my attorney was part of the third lost complaint.
Did my attorney not breach his fiduciary duties to me by not asserting my claims related to my mothers estate against any other persons.I was the damaged party.
Hi FredI would agree that it appears that the attorney did not provide the legal services that he agreed to provide. When that happens, you are entitled to a refund of your retainer. It does not matter that the agreement states nonrefundable or not, you are still entitled to a refund if he does not provide the services as agreed. Further, if you prevail on the underlying lawsuits or his inaction causes you to lose those lawsuits, then that is malpractice and you are entitled to damages. It appears that you are absolutely entitled to a refund of at least a portion of the retainer fee. I really can't say whether you have a malpractice case or not but you do have enough to file an official complaint with the bar and see what they say.
Did my attorney not breach his fiduciary duties to me by not filing my estate claims on my behalf?This cost me agreat deal of damages and it took me three years to compile the evidence and three consulting physicians.My attorney was in possession of all of this.
That is something that I cannot positively answer for you one way or the other since I am not privy to any of the court filings, your agreement with him or what you instructed him to do. I am somewhat confused by the situation with your aunt and her not being damaged. In other words, if you hired him on behalf of your aunt, then he could only file on behalf of your aunt for any damages that she may have. If you hired him to represent you and your aunt, then he had an obligation to also file on your behalf. However, if he then determined that she was not damaged but you were the proper party, then he had an obligation to promptly inform you, not wait 17 months.
My aunt was the executor of my mothers pour over will. Everything was poured over.
The only reason my aunt got involved is seven months after taking the case my attorney had not even looked at my mothers abuse and financial exploration so he told my aunts lawyer he should file the suit.
My contract with my attorney did not include my aunt.He was supposed to represent me in any estate related litigation.He did not do it.
After my aunts attorney as executor lost two complaints is when he said I was the damaged party and I should have brought the suit and intervened in the trust case pending in the federal court.
I was always going to be the plaintiff it is just my attorney ran out of time and shoved it in my aunts lap.
Then instead of filing the complaint under my name he amended my aunts complaint and it failed.The complaint never stood a chance.
My point is he contracted with me not my aunt.He did not prosecute on my behalf what our contract stated.
Please answer this as to me it is not believable.
The trust suit had me as the plaintiff.I was a ditrect beneficiary of my mothers trust from 1986-2003.In 2003 a sub trust was set up the F.W.Regnery trust from my mothers living trust.I was the beneficiary my children the trustee.
The defendants filed a judgement on the pleadings stating I had no standing to sue.We wasted three months did not research the law and the judge ruled in favor of the defendants.I then had to substitute my children in as the plaintiffs.
I have done a great deal of research on this and would like your opinion.
A revocable living trust.Three direct child beneficiaries 1989-2003 then 2003 one of the childs 1/3rd got carved out into a subtrust under the VKR revocable living trust.
What I have found is that I did have standing as at one time 1989-2003 I was a direct beneficiary.Do you agree.
Common sense says if in 2003 while my mother was under undo influence my sisters while I was in China had her amend her trust cutting me out.
I dont know this happened..My mother dies.I dont have standing to sue because I am no longer a beneficiary?
This is just an example that was given to me that my attorneys did not research the law and immeadiatly go back to court and show the judge I did have standing to sue my sisters current or past benificiary it does not matter.
Do you agree
Pat please tell me if my email on standing came through to you.I pressed reply then went to pay you but I can find my question in our thread.
It was regarding my aunt and I with the estate related suit and once a benificiary always a benificiary and you do have standing upon the grantors death.
Please let me know if you got it
Pat I am not sue what happened.Again my question did not post.I went to pay you and it said that I was blocked from that page so I paid you $20.00 from the bonus section.
All I need to know is if you received my post regarding my aunt and I on the estate suit and then my question on standing.
Because I was a direct beneficiary of my mothers trust for 15 years then without my knowledge my 1/3rd created a subtrust within her living trust.I was the beneficiary my children were trustees.
My attornery did not research the law.The judgement on the pleadings stating I had no standing was wrong.My attorney had an obligation to check the law and prove to the court that I did have standing as a past beneficiary of the trust
Do you agree,
My contract with my attorney did not include my aunt. He was supposed to represent me in any estate related litigation.He did not do it.Due to the complicated nature of the case and the rulings against you and your aunt, it is going to be very difficult to prove malpractice since you are going to have a hard time showing that you would have prevailed in the underlying case. My point is he contracted with me not my aunt. He did not prosecute on my behalf what our contract stated.I would agree that you were ill served by your attorney. Based on just what I know, you and your aunt should have both been named plaintiffs from the start. Also it appears from our prior conversations that you should have won your case. But the fact is that you did not prevail and proving that you would have except for the negligence of your attorney is going to be very difficult if not impossible in my opinion. The case is just too complex and your aunt's attorney also lost. I have been involved in a case for ineffective assistance of counsel and the system protects their own. Here is a quote from a recent ruling
Issue: Are counsel's alleged shortcomings at trial actionable as professional negligence?
"Although an attorney has the duty to fashion a strategy so that it is consistent with prevailing law, he does not have a duty to ensure or guarantee the most favorable outcome possible [M]ere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence." Again I agree that he did not pursue your case with reasonable diligence, the problem is what you can do about it now. I just don't see a favorable outcome for you and only more expense to your current attorney. Litigation strategy is not subject to attack in an action for legal malpractice.
"Although an attorney has the duty to fashion a strategy so that it is consistent with prevailing law, he does not have a duty to ensure or guarantee the most favorable outcome possible
[M]ere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence."
Again I agree that he did not pursue your case with reasonable diligence, the problem is what you can do about it now. I just don't see a favorable outcome for you and only more expense to your current attorney. Litigation strategy is not subject to attack in an action for legal malpractice.
I completely agree with you.My business opportunities have never been brighter.The largesrt seller of window coverings Budget Blinds with 2200 outlets the buyer is going to China with me in October.This is after 5 years of proposals.
Last night believe it or not I received an email from my industrial customer requesting pricing on 50,000,000 empty tin shoe polish boxes.That is their annual usage.
This case against my sisters is over and done with so is trying to find a way to sue them or even trying to ask for a criminal prosecution in Marin county.
When I signed the settlement in December of 3, 2010 it was over.
Unfortunately an unscrupulous attorney eight months later after I wrote the ARDC because he would not refund the $20,000 owed from a case he never filed he sued me out of spite.
I must defend myself.If not the court will issue a default Judgement in spite of the fact that he owes me money.
That is what my entire post to you have been surrounding.
My attorney has been far too casual.He filed a counter claim one year ago for $20,000.
Now I will meet with him next week to discuss amending the counterclaim.
To prevail I must show I would have won the underlying trust case or at least part of it. This has nothing to do with the abuse case in the state court.
In 17 months he did not take two Neurologists depositions that would have invalidated the 2006 trust.In 17 months after receiving my sisters declarations the had 18 years of accounting in their possession he did not file a motion to compel production iof those documents.
Those are the back bone of my trust case.Believe me I want to get as far away from this as I can but through no fault of my own I must defend myself against my attorney.
Please tell me about standing as this cost us three months of discovery when the opposition filed a judgement on the pleadings.
I was a direct beneficiary of a trust from 1989-2003.In 2003 my mothers living trust set up a sub-trust for my 1/3rd.I was the beneficiary my children trustees.
Because I was a beneficiary 1989-2003 upon my mothers death I had standing to sue in fact a long time ago you said the same thing.
If I did this will be one more element showing incompetence of my attorney for not researching this and filing the proper response.
I did not initiated this suit but now must determine my counter claim.I believe it will be malpractice only on two issues which constituted 100% of my accounting suit
If a prior beneficiary does not have standing how is he protected from being cut out of a trust earlier by the grantor because she was incapacitated an signed a new trust cutting out one of her children.
I have been told this before but before I meet my attorney next week I want to be on solid ground.
Did I as a former direct beneficiary of my mothers trust14 years give me standing at the time of her death.
Did I as a former direct beneficiary of my mothers trust 14 years give me standing at the time of her death.It would only if you were not aware of what had happened and there was no right of action by being the beneficiary of the subtrust. If you were aware of the subtrust and did nothing, then the statute of limitations on any action on your part would have run. If you were not aware of the subtrust and that you had been "cut out", then you would still have standing to sue in my opinion. However, I do not wear robes and it appears that for some reason a judge decided that you did not have standing. That issue would have been subject to an appeal since it was a final decision. Since you did not appeal, it became the law of the case, right or wrong. I understand that you must now defend the lawsuit. What I am saying is that it might be in your best interest for everyone to agree to dismiss everything and move on.
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