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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 111683
Experience:  Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
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I'm not sure if I pick the right specialty in regards to

Customer Question

I'm not sure if I pick the right specialty in regards ***** ***** Protection Law. I guess it might be more of a contract law. I sued my employer 4 discrimination based on a perceived disability. My lawyer took my case on a contingency basis. During The Binding arbitration it became perfectly clear to me that my lawyer must have cut a deal with opposing counsel. I have proof that he entered into negotiations and sent a demand letter in the amount of $100,000 to opposing counsel without my knowledge or consent prior to binding arbitration. I want a partial award in that case in the amount of $60,000. My lawyer, according to the contract, was entitled to 40% of that amount. However, after listening to me rail at him he only kept $8,000 of that money. I am going to contact him tomorrow and make him give me the other $8,000 due to breach of contract. I have told him that I will contact the bar and submit a formal complaint if he does not acquiesce to giving me the rest of my lawsuit money as he had collected lawyers fees over and above the settlement award. I have received all of the settlement award except for the $8,000 and was wanting to know if I am doing the right thing at all? Also, Kaiser released all of my medical records including personal correspondence between me and my doctor to opposing counsel without my knowledge or consent and without a court order. I called Kaiser and spoke with a representative who informed me that the phone call was being recorded comma at that point I also informed her that at my end of the conversation is being recorded as well. During this recorded conversation, she said that they released my files to my attorney and tried to verify the name of my attorney by giving me opposing counsel's name. I then explained to her that that was not my attorney and that they released all of my medical records to opposing counsel. She had a very surprised reaction on the phone and I wanted to know if there is any way I can pursue them for releasing my medical records would cost me a lot of money in this lawsuit?
Submitted: 5 months ago.
Category: Personal Injury Law
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
When an attorney is hired to represent someone, they are given the authority to use their professional legal judgment to work out the best deal for their client or to use that judgment in trial/arbitration that they can based on their professional evaluation of the evidence, the law and past judgments/settlements in similar types of cases. Many times, clients have unrealistic expectations of what their cases are worth and attorneys are the unbiased evaluator of the evidence and law to help make the realistic determination.
Also, one thing many clients do not realize is that lawyers constantly negotiate with other parties in a case, it is not collusion or that the attorney is against their client's interests, it is their job to negotiate settlements. A settlement is by very definition something that neither party is happy about taking but it is something they can live with and is reasonable considering all factors (evidence, law, cost of pursuing the matter further through trial which can be very expensive and in the long run lead to the client not getting much more money than the settlement provides).
Filing a bar complaint requires you to prove he actually violated the rules of professional conduct or was negligent in his representation. Merely because a client did not get what they believe their case was worth out of a settlement or arbitration is not sufficient to prove the attorney was negligent. So you are going to need professional experts to evaluate your case and your attorney's actions to determine whether or not he was negligent. If your attorney (and your award) is found to be reasonable (even though it may not be as much as you wanted) based on the evidence and actions of your attorney and the law, then you would not succeed in a bar complaint or a malpractice claim against the attorney.
A contingency fee contract is a percentage of the award plus costs and expenses and if the attorney has kept more than their percentage plus costs and expenses, then you can seek a return of that over payment. The attorney will have to provide you proof of why he is keeping the money he is keeping by giving you an itemized statement proving costs and expenses. If he does not do that, then you can file a bar complaint for that reason and also seek fee dispute resolution.
As far as the release of your medical records. Unless the hospital had a signed release from you for those records or a court subpoena, HIPAA prevents them from releasing them. Under HIPAA the sole agency with authority to investigate and enforce HIPAA is the US Department of Health and Human Services, so you would have to file a complaint with them, as there is no personal right to sue under HIPAA. If they discover that the hospital improperly released the files, then you would have to seek to sue the hospital for breach of their duty of confidentiality of medical records in STATE court, not under HIPAA, and you can seek damages from them for that improper breach of confidentiality.
Customer: replied 5 months ago.
For the two years this lawsuit went on I continue to ask my attorney and how much we should sue for. He did not answer that question until after the settlement so during the entire time I had no idea how much we were suing for. Also, in the contract between attorney and client it states that neither shall enter into negotiations with opposing counsel without the other's knowledge and consent. He violated the contract and when I called him on it he said that he had not expected this case to be as litigation intensive as it was which prompted him to send the demand letter without my knowledge. I felt it was an admission of guilt for him to give me more of the money that is due me considering the contract we both signed. As it is, I can prove that he breached the contract between us. I can also prove tampering with evidence. During the deposition I was blindsided with my medical information put in front of me. I've read the laws and from what I understand they have to let me know 10 days prior to any depositions if my medical records are going to be any part of them. Also comma the fax cover sheet that was sent to a company doctor as well as the guidelines describing a disability or modified in order to get the response they wanted from that doctor. I know this because I have obtained copies from his office and they are different than the copies presented at arbitration. I know that I was screwed over and what I'm gleaning from your response is that I have no recourse
Expert:  Law Educator, Esq. replied 5 months ago.

Thank you for your reply.

An attorney many times cannot predict values of cases until all the evidence is in.

If your contract with him says he would not enter into negotiations without your consent and he did not get your consent to enter into negotiations, then you can sue him for breach of contract on that ground or can file a fee dispute with the state bar over him not securing your permission, but again the court is going to make the determination as to whether or not he was actually negligent in the results he obtained for you.

If they improperly released your medical records and the US DHHS finds they did so, then you have recourse to sue the hospital for breach of their duty of confidentiality.