Dear Customer, thank you for choosing Just Answer. Can you provide me with some more information about your situation? In most cases it is very difficult for an attorney to sue a client for fraud due to the attorney client privilege but perhaps there is a special circumstance that would create a different result.
The situation you have described is very unusual, it appears from my understanding that the attorney is blackmailing your mother into paying a higher fee for services (switching from a contingency to an hourly rate after taking on the case) and is now threatening suit for fraud based on her statements to him which would fall within the attorney/client privilege.
The change in fee agreement under duress will make the new contract "voidable" meaning that your mother can withdraw from the contract (return to the old one) because she was forced to do so under the improper threat of criminal prosecution by her attorney.
The threat of a civil case of fraud in an improper venue to achieve an economic advantage over a client is not only unethical, and in the wrong jurisdiction, but it is likely against the terms of the legal services contract between your mother and the attorney (I am guessing, but most require litigation in the forum where the work is to be done).
Your mother may indeed have a claim for fraud (the attorney promised a contingency fee case, and changed it to an hourly rate case. Your mother relied on the original representation to her detriment, and now has suffered a loss). Any attorney who has represented a client in litigation that claims he has never found in a case facts to have shifted or otherwise changed (specifically on an issue subjective to the attorney) would be very rare indeed.
I can't give you specific legal advice or instruction. Many individuals with limited means will wait for the other party to sue first and then file a counter-claim so that they do not have to incur the costs of a lawsuit first (it is not a huge savings, but in some instances the other side will not file and you can avoid further litigation). If you do choose to litigate, a case such as this would be difficult to win without an attorney given the procedural issues involved (however, the process is set up to litigate individually, it is just easier if you have someone helping you who does this for a living).
You can file with the NY Bar Association or Grievance Committee, it will definitely upset the attorney, but it is an opportunity to bring bad conduct to light with minimal costs.
The timing of the grievance does not matter. If you do choose to file a legal malpractice case however, the statute of limitations is 3 years (but it is a good idea to file earlier in most instances).
Does your mother (or this case) have any ties to Minnesota at all?
If a case is filed in the wrong jurisdiction (state), the Court in that state has no jurisdiction over the defendant (your mother), and any judgment rendered against that defendant is unenforceable.
I do not have a good explanation for that one.
He can sue in NY (the proper jurisdiction), but that only corrects the jurisdiction problem, it does not change anything with regard to whether the promisory note was drafted properly, or the change in fee schedule was permissible.
(I should note that it is possible in some cases for attorneys and clients to change a fee arrangement from contingency to hourly or vice-versa, but doing so based on a threat or coercion is not one of those circumstances).
He may transfer the file to a collection agency, but to take any real action on the debt he would have to file a collection action in civil court and get a judgment against your mother. If he decided to do that your mother could raise all of the affirmative defenses regarding the circumstances of the debt and quality of representation etc. (obviously there is risk in litigation, but contesting the circumstances of a promisory note is not unreasonable).
The collection suit cannot take place in Minnesota - the Court has no jurisdiction there unless your mother is domiciled there or the contract is related to the state. After a judgment is entered, the enforcement of the judgment can take place in that state (a NY Judgment can be enforced in Minnesota).
That is correct, you cannot represent your mother in Court (you are not an attorney), but most Courts will allow you to assist as a translator.
You are welcome, I hope this works out quickly for you and your mother. Please do not hesitate to ask if you have further questions.
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