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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33063
Experience:  Began practicing law in 1992
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I filed an overtime case, and a discrimination case against

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I filed an overtime case, and a discrimination case against my employer. The lawyer I hired liked my overtime case, but didn't like the discrimination case. He took the discrimination case for 20% and $100 per hour. His usual rate is 40% and $250 per hour. My overtime case was only a $35,000 case, but both cases settled for $300,000. During mediation the preliminary settlement agreement had the money split 60% - 40%. I made my lawyer apply both attorney-client contracts proportionally in the formal settlement agreement. I wanted to wait until I had a chance to review my case folder before signing the formal agreement and my lawyer said he could get me more time, but my company went ahead and had the overtime case approved based on the preliminary agreement. And my lawyer is saying I need to sign a motion to dismissed which is stated in the settlement agreement, or i'll be sued. I need to have the approved overtime case changed, would signing a motion to dismiss keep me from doing that?
Submitted: 8 years ago.
Category: Legal
Expert:  Dwayne B. replied 8 years ago.
Are you asking about a dispute between your lawyer and yourself about his fee, or is the other party somehow involved in the dispute?
Customer: replied 8 years ago.
This is a fee dispute. But the other party is involved because they say they need me to sign a motion to dismiss which is stated in the agreement. I'd like to have the formal agreement applied so that the money will be divided according to our separate attorney-client contracts. But the company went ahead and approved the preliminary agreement which has the money split 60% - 40%. I'm concerned that by signing the motion to dismiss, I might be locking myself into those numbers. The discrimination case has not been approved, yet. And I'm trying to get them (my lawyer and the company) to apply the formal agreement to the discrimination case. They haven't done that yet, but want me to sign the dismissal??? I'm very concerned about this process.
Expert:  Dwayne B. replied 8 years ago.
I understand your concern, however your real problem is that the fee dispute is between your lawyer and yourself and the other party isn't involved. The best thing to do at this point is to have another lawyer assist you in redoing the agreement so as to remove the attorney's fee portion of it (which probably shouldn't have been in there in the first place). This will enable you to sign off on the agreement while still preserving the issue of the fee.

If an agreement has been signed and the issues resolved between you and the other party, then they can file with the court to have the agreement "enforced" and ask for attorney's fees against you.

Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.

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Customer: replied 8 years ago.

If they refuse to sign a formal agreement with the attorney's fees removed and file a motion to enforce as they did with the overtime case, can I appeal? My feeling is that because they already have the overtime case approved, based on the preliminary agreement, they want me to signoff on the discrimination case, by signing the motion to dismiss. And they will just have the preliminary agreement applied to the discrimination case, presumably with my blessing.

I guess what I'm asking is should I sign the motion to dismiss before they sign the formal agreement. And if they don't sign the formal agreement and go ahead an enforce based on the preliminary agreement, can I do anything about it. Is there a window where I can appeal / reverse this? Would it be difficult for me to do so?

Expert:  Dwayne B. replied 8 years ago.
To get around having the discrimination case dismissed the settlement agreement needs to state specifically that your rights to pursue the discrimination claim are not affected by the agreement and the dismissal of the other case.

You should not sign a motion to dismiss a case until a settlement agreement has been reached and signed off on. Sometimes the settlement agreement can be as simple as a letter between the parties which both of them sign. Without a full knowledge of the case, which isn't possible in this format, I really can't speak to the difference between a preliminary agreement and a final agreement. Yes, it would be difficult to appeal or reverse a decision made by the judge on enforcing a settlement agreement. You can appeal it but they are hard to reverse. The window is usually 30 days or less after the judge signs the order.

Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR TEXAS ATTY” in the subject line and I will pick up the next time I am online.
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