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socrateaser, Attorney
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This question concerns a fee/retainer contract with a lawyer

Customer Question

This question concerns a fee/retainer contract with a lawyer in California. Approximately a month before a simple trial I attended free consultations with the lawyer. During this consultations he start telling me how great Civil Rights case against the county we have afterwards, which he will like to take on contingency base. He was all chatty and friendly, trying to get this easy case. During the free consultation he reviewed the matter of hand and said how easy would be to win this trial. We agree that I should pay him a $5,000 retainer in two payments. At the end of the meeting he presented the 12 pages contract and misrepresented it as “formality” and something I should not worry about. No time was given to me to read or review it. We agree verbally the first payment ($2,500.00) will be taken out of my credit card. The second payment supposed to be paid several days before the trial. There was no conversation about more payments.

When my credit card statement came several weeks later I’ve noticed that instead of charging me $2,500 he charged me $2,650.00. When I contacted the layer about this he became defensive and was going in length about how the contract allowed him to charge me 6% processing fee. When I protested and said that he gave me no time to read the contract and that no processing company charge 6% , so clearly he was trying to make the money out of that, he backed off and agree that I should pay him only $2,350.00. it was at this time that I attached the leter to my check and said that all I am able and willing to pay him to tri this case was $5,000.00 and if he cash the check, which I called “the final payment” I would consider this to be his acceptance of the case on the flat fee bases and no further payment will be made or due. We went to trial. One of the counselors on the other side broke a leg so the trial was postponed. I don’t know if I had a chance to oppose the continuance but “my lawyer” certainly seem to like that. The next time around we spent at the Court about half a day. For the trial lawyer prepared 3 pages brief. He also prepared 10 subpoenas but called only one outside of the family witness. Preparing the rest, out of which he serve none, most was for the family members and two we served ourselves, was waste of time he later attempted to charge me five hours. All together with waiting we were there half a day. Now, months later, he is sending me a bill for “the balance” of approximately $22,000 and is threatening to sue me if I do not pay by certain day.

What are my defenses? I feel ambushed and defrauded. Do I still have to pay him despite of his misrepresentations and the fact that despite of the fact that contract reads that monthly bills will be furnished, no bill was ever furnished until now when the number is XXXXX? I (recently) learned that BAR Rules of professional conduct directs a lawyer to advice his client to instruct a cline of his right to consult another lawyer about his contract but how serious is the violation when the lawyer chose not to do that and instead makes verbal promises an misrepresentations to persuade the client into signing his contract, which defers from what was said?

The attorney-client relation should be based on the trust and if the lawyer is using this predicament to entice you to sign something that will hurt you down the line and something that you did not understand, ist this legitimate?

Your eleaborate and technical answer is expected.
Submitted: 6 years ago.
Category: Business Law
Expert:  socrateaser replied 6 years ago.
Thanks for requesting me. What a way to start a new month. And, away we go:

1. The terms "retainer" and "advance" in California lawyering, are not interchangeable, as may be the case in other jurisdictions. A retainer is a payment intended to reserve an attorney's availability, without any connection to the attorney's fees for services rendered. It is earned entirely at the instant the attorney accepts the case, and without credit for any future performance. Whereas an advance is a charge paid to cover future fees and costs associated with the prosecution or defense of a case.

Due to this, it is possible that you were duped into believing that you were paying $5,000 as an advance against fees, when in fact the contract you signed treated the payment as a retainer. Were this entirely explained to you in advance, and the attorney could claim this is so, if the fee agreement does, then you have a difficult case against the attorney, because frankly, $22,000 (or even $27,000) is pretty reasonable for a "civil rights" case actually brought to trial in California (and if this is a federal court case, then it could be characterized as "cheap," in my opinion).

So, in your quest to try to avoid payment, you may not easily rely on the actual charges assessed, because the judge or arbitrator is unlikely to view the charges as "unconscionable" (aka, "shockingly unfair").

2. Your letter, along with the check provided, the fact that the attorney cashed the check, and dependent upon the exact terms of the fee agreement and letter, could be viewed as (a) a completed modification by mutual assent; (b) an accord and satisfaction under Commercial Code § 3311, which forcibly modifies the fee agreement to your advantage; or (c) a failed modification, because the payment represented by the check is not new consideration for any contract modification or accord, and so it and the accompanying letter have no "legal" effect on the original contract that you signed.

Thus, the contract law issues here are highly uncertain, because you may have anything from a rock-solid footing, to no case whatsoever, due to the variety of legal arguments available.

3. Regardless of the success or failure of the contract modification, your attorney has a legal duty of competence as your lawyer, to discuss the matter and resolve any misunderstandings created by the circumstances before going forward with the case.

Failure to do this, in my view, is malpractice to the extent that you are damaged, because the failure to properly explain the agreement, once the first payment was accepted, breaches the duty of ordinary care, which is far lower than the duty of loyalty and fiduciary owed by a lawyer to his/her client, that breach damages the client who reasonably believes that the legal agreement with the attorney is other than it may actually be, and the lawyer's breach is the actual and reasonably foreseeable cause of the client's injury -- which is the difference between what the client believed he/she would be obligated to pay under the fee agreement, and what the client was actually obligated to pay.

3. The issue of duties owed by the attorney to a client under the State Bar Rules of Professional Conduct are separate to the extent that the burden of proof for disciplinary actions is much higher than the burden necessary to win a malpractice or legal contract dispute. And, a State Bar prosecution does not promise to recover client damages as part of a disciplinary action (at least not formally). It is, however, pretty good leverage against an attorney who wants to continue to practice law in the future. So, if you believe you have been deceived, then a complaint to the State Bar Attorney Hot LIne is a good option, though you may want to sit down and have a heart-to-heart with the attorney before doing so -- because once you complain, that leverage is lost -- and there is no guarantee that the State Bar will actually prosecute the attorney. It's out of your hands (as would be the case with a criminal action, once in the DA's hands).

Note: Don't threaten to report the lawyer unless he agrees to leave you alone, because you can't tie your settlement of the dispute to a potential disclosure of information that would subject the lawyer to discipline or reputation injury, as the threatened disclosure may be viewed as criminal extortion.

You can, however, ask the attorney to explain your right to complain to the State Bar, and thereby leave the issue "hanging" over the negotiation, like a grand piano on a hoist line made from dental floss.

In sum, your letter may be sufficient evidence of either a contract mod or of attorney malpractice to relieve you of the liability for the added fees. But, without reviewing the letter and the fee agreement, that's about as far as I can go with the analysis. Re a State Bar complaint, that's a collateral issue that may or may on assist in getting you a resolution of the dispute -- but, it cannot be used as an express or implied lever, without putting you at a different sort of risk.

Hope this helps.

socrateaser and other Business Law Specialists are ready to help you
Customer: replied 6 years ago.

I would like to stress several important points for the purpose of clarification.


1) The trial was NOT for a Civil Rights case, has it bean I would have no complaints as anyone reasonable will know that larger amount of time is involved and therefore need s to be paid. The issue at hand was for a juvenile dependency matter that was until that point handled by County appointed attorney. Because she was a pregnant women scheduled to deliver a baby right before the trial, replacement was necessary for the next hearing (trial). The trila in this matter was more like an Unlawful Detainer trial, short and simple. On one side you have County Social workers filing distorted and fraudulent reports and on the other side your attorney is daring them to prove their case by credible evidence they did not have. So this is the reason while in O.P. above I said "this was a fairly simple matter". Simetricaly, this is why the lawyer at question produced "the whole three pages" trial brief to summarize our position,... after reading material that could be read in fairly one to two hours.


He duped me into signing" while saying how he would like to take my - Civil Rights Case - on contingency bases, after the dependency case is disposed by dismissal.


Why I am sure of that, weeks after I met this lawyer I found a better known attorney in that field of dependency, from OC, who charged me $400.00 to read all the papers and render his opinion. He then said he wanted $1,000 to take the case and represent my wife in the same trial to work hand in glow with my lawyer, as every memebr of the family had to ahve separate lawyer, but this did not go through for two reason because the Lawyer1, with whom I had this fee problem, would not cooperate with this lawyer on the matter, or return his call/emails and then also, it turned out that there he had calendar conflict but this is less important. What's important is that he estimated the cost for the apperance on the trial to be $1,000 not $5,000 as I agreed to pay the first one. This leads me to leive that for the job rendered $5,000 was suficient if noit very good compensation.


2. Back to the contract. It is a 12 pages "Attorney Client Fee Agreement" that says under the (same) section, but second paragraph of the section titled "DEPOSITS AND FEES AND COST", that he is giving me discounted rate of $250/hr and that I should pay $5,000 "retainer/deposit". But then in the same section's first paragraph the contracts still reads that I agreed to pay $7,500.00 no later than at the time the agreement is signed, point being there are conflicts within paragraphs of the same section of the contract which to anyone will be confusing at best.


In the same conflicting and confusing manner, on page one under MANNER OF BILLING it says that the rate is $395.00r which contradicts what the contract says on the page 3. On that page the contracts reads ... "Once the trial, mediation and arbitration date is set, Client(s) shall pay in full all sums then owing to Attorney. ( No sumes were requested meaning I did not owe any), ... Additionally, Client(s) shell deposit the Attorney's fee estimated to be incurred in preparing for and completing the trial, mediation or arbitration, as well as the jury fees....and other cost likely to be incurred." - But no such additional fees were requested meaning there was no money owed at time before the trial. Plus, no estimates fo cost was offered further making me bleive that I paid the fees in full.


Further, in the same paragraph it says...."Deposit required to cover estimated attorney's fees, etcetera, may exceed any maximum deposit for security previously paid by Clients(s), or the maximum deposit for security described in the foregoing paragraphs." - I never received estimated attorney's fees and I contend that no more fees were due because the attorney representation is that my matter is simple and easy case and I was led to believe that $5,000 will be all I have to pay. In addition to that I wrote the letter expressing my wish to cancel the agreement unless the same is changed as described below. - Yet, two monts later he is asking for $22,000 more so I wonder how is that reasonable?



The fee agreement says further in the pertinent parts:


"Though not in consideration for Client's initial non-refundable retainer fee, Attorney agrees to credit Client with payment for [...her he did some scratching that altered original writing that credit Client for 23 Hours of work for $7,500 retainer..] and by hand he wrote "Client may pay $5,000 RETAINER ½ -$2,500 NOW AND ½ $2,500 BY Feb 7, 2011. Unless this retainer payment is a flat fee for all services to be provided by Attorney to Client(s) under this agreement, Clinet(s) acknowledge that intial retainer/deposit does not represent an estimate of payment of the total fees and the cost for which Clinet(s) will ultimately be responsible to Attorney, but merely a payment made for purpose of securing Attorney's servicer as stated above."


"The Attorney reserves the right to demand reasonable deposit for security, for payments by attorney of Client's cost and/or for Attorney's fees. Attorney shell require, and Clinet shell be required to pay subsequent deposit for security whenever any deposit for security is exhausted, each up to a maximum of $10,000 before trial, mediation or arbitration date is set."


Again, "he" never required (asked for) any more money before the trial but is now asking $22,000 more without ever providing any esotmate of cost, and is for example billing me, 2hr of intial consultations which supposed to be free and which took place before I signed the contract, and for reading emails (in which I send him my research relative to Civil Rights case), giving the stated interest to take this case after dependency case trilal on contingency bases. He is charging me nearly 10hr for prepairing three pages brief and 5hr for filling up 10 subpoenas in pdf format that require only changes on party's name, which takes only minutes. he is also charging me 7hr for appearing in Court for only one hour when the minor's counsle could not attned because she broke her leg. Issue of overbilling is thus another issue that speaks voluems about his ethics.


Have I known that he used promiss to take Civil Rights Case on contigency, and that he only said thT to dupe me into signing the contract, I would not send him those emails or sign his contract. This was sad to build the trust and increase the value of the service that did not come.


. Besides, as the record shows, "he" just ignored my question stated in my emails and never responded to any of them - yet he is billing me for "reading" those emails. So how do you know he ever read them? "He" only contacted me two day before the trial so is it legitimate to charge me to "allegedly" read my email and then ignore my legtiamte question is same?


3. I was convinced during the hiring, based on his verbal representations, that I can only pay total of $5,000 and I stated this in my letter when I furnished the $2,350.00 check as second and final payment before trial. When in contrary to waht is says in the contract he never send em a montly bill, I was further convinced that our understandng is clear after intial contact, dispute and the letter in which I asserted the righ to cancel the contract if he does not agree that $5,000 is my final payment of "flat fees". My letter also said that if this is not accpetable, both, the attached check and the first payment, including overpayonet shel be returend immediatly. He and his partner chose to cash the check.


4. Furthwermore, speaking of malpractice, my requests for documents filed with the Court was ignored during the course of representation. If my wife's county appointed attrney did not send us copies of filed documents we would have "none" to show for now. "He" also faild to appear in Court on one of the follow up dispostion hearings, he at that point send me substitution of attorney's form to return to hkim, which I did. Then on the next hearing he appeared and thereafter claimed he dissmised my case and I now owe him $22,000 according to updated bill, in time when no prior bill waas received. This is in my opinion further evidence of malpractice.





Expert:  socrateaser replied 6 years ago.
Hi again.

Civil Code §1649 provides that "f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promissor believed, at the time of making it, that the promissee understood it." In other words, if A knows that B interprets an ambiguous provision in a certain way but does not clarify matters, A will be bound to B's interpretation. See Ticor Title Ins. Co. v Employers Ins. of Wausau (1995) 40 CA4th 1699, 1708; People v Shelton (2006) 37 C4th 759, 767.

If application of the rule still does not eliminate the ambiguity, the language in question will be construed against the drafter, because the drafter created the uncertainty. County of San Diego v Ace Prop. & Cas. Ins. Co. (2005) 37 C4th 406, 415.

Your facts appear to show a sea of ambiguities, with one clause contradicting the next. In particular, the term, "retainer/deposit" is a legal nonsequitur. A retainer is nonrefundable by definition, and a deposit is an advance/security for future payment -- thus the two terms in the same statement are wholly unreconciable, and that means your payment was an advance, not a retainer.

That said, I think you now may have a legal theory under which you could potentially invalidate the contact payment language, which would leave a court or fee arbitration panel (the latter is mandated by the State Bar for the attorney to engage in if the client requests) in a position to order "quantum meruit," which means "the value of services rendered," and which would permit you to provide evidence as to why the attorney's fees are unreasonable under the circumstances.

Re malpractice, it could probably be argued the the contract language and modifications are an "exercise in malpractice," if only because of that silly "retainer/deposit" term may suggest that the attorney may not understand the basic requirements of his professional fee agreement obligations.

That said, I am not in a position to accuse anyone of anything. I'm simply discussing the facts as you are presenting them, and trying to offer options for your consideration. BotXXXXX XXXXXne here is that in addition to the other possible defenses, previously discussed, I now see a potential contract law defense to enforcement under a mistake/ambiguity theory.

Note: just out of curiosity, your forum statistics suggest that you have never asked a question here before, but you specifically asked for me, like I was the expert for the job. So, I'm wondering if you have asked me questions under a different userid before, i.e., what was it that caused you to request me to answer?

Hope this helps.
Customer: replied 6 years ago.
Based on experience in another case and with another lawyer (which the insurance was paying), the bill presented three months later is also very excessive. By that I mean I've seen 100 pages motions for sanctions, featuring multiple exhibits, asking for less than 4 hours. The moving lawyer also did not asked for "X"hr to drive to Court, or go back to her office, lawyer only asked for time spent on preparing the motion. Apparently, I should be at freedom to draw a conclusion that if you are incapable or incompetent you can spend ten hours on a task but this does not allow you to charge exuberant number of hour. Isn't that right? I mean how much time is fair to prepare three pages brief and how many hours would you claim someone owes you for appearing one hour in court even if the fee contract and hourly base is used as base for calculation?


Here, after not furnishing any monthly bill, this guy is billing me 5hr on one occasion to write the brief and then another 5hr on another occasion to revise the same! Interestingly I only saw one version so in light of the ongoing issue with deception and credibility I cannot accept everything for granted... BTW has also entered 7hr to appear merely one hour in Court, ... I mean I might have been naïve and duped to sign the contract which I believed was "flat fee" contract but billing me unreasonable time for work that was not done, doesn't seem reasonable.


In automotive industry for example the mechanic has to give you ESTIMATE for repair and you have to agree to that estimate or he will be preclude form collecting sums for not approved repairs. There is also law protecting citizens from unscrupulous "equity purchasers" who lure people into singing "purchase contracts" contract by means of trickery, using false promises or similar. This is very similar to what happened to me here.


A friend of mine suggested I post the question to this site and ask for you because you help her in the past with an issue and you provided good quality discussion. You were rightfully represented as true asset to this web site and I cannot agree more with this conclusion, especially after considering that some of the answers I read on another subject wasn't really meant to wholeheartedly help a person. Did you ever have any decision(s) published?


Also, can the attachmewnt be presented along with the questions... it seems that way form the tools available when one writes the post.

Expert:  socrateaser replied 6 years ago.
Apparently, I should be at freedom to draw a conclusion that if you are incapable or incompetent you can spend ten hours on a task but this does not allow you to charge exuberant number of hour. Isn't that right?

A: State Bar Rule 4-200 states that an attorney may not charge an "unconscionable fee." An unconscionable fee has been defined as "so exorbitant and wholly disproportionate to the services performed as to shock the conscience." See Bushman v. State Bar (1974) 11 Cal.3d 558, 563. Overreaching, via fraudulent/intentional misrepresentations has also been held to be unconscionable. However, a fee that is merely unreasonable is not a violation of the Rules, because if clients could raise the threat of disciplinary action on every bill, attorneys would always be in an unfair position in dealing with their clients (and god knows, we can't have thatCool).

Factors for determining fee unconscionableness are naturally hazy. See Cal. Rules Prof. Cond. 4-200. Note: The California Rule is more forgiving to attorneys than in any other U.S. jurisdiction (i.e., unconscionable vis-a-vis unreasonable standard), so don't compare what may happen elsewhere because California attorneys can charge higher fees than their non-California colleagues, generally speaking.

I mean how much time is fair to prepare three pages brief and how many hours would you claim someone owes you for appearing one hour in court even if the fee contract and hourly base is used as base for calculation?

A: For me, the issue is: (1) Is the brief a novel issue, or one where the law is unsettled, so that it needs substantial revision every time the matter is considered (e.g., the case law surrounding employment discrimination is fairly well-settled -- however, there is always the possibility of something new, so reviewing to see if there are any new opinions is necessary, but not writing a points and authorities from scratch. Nevertheless, the facts are never the same, so there must be some rewrite of every brief for every client); and (2) how long is the appearance, how critical is the issue to the case (do I need to prepare an oral argument, or can I wing it), and (frankly) how much drive time from my office to the court and back is required [telephone vis-a-vis in person hearing)) (n.b., one of the classic means of unconscionable overbilling is to have multiple hearings for different clients on the same day, and bill each for drive time -- the value of the drive can be the most profitable part of the work day).

I can't give you a "number," but I have experienced a successful hearing in bankruptcy court on the phone, with a one-page brief where the entire billing time for everything is less than one hour, and conversely, a 10-page brief in family court over temporary custody, that ends up requiring the entire day in court for argument and evidence (most of the time, waiting for the judge's calendar to free up so that we can present evidence, which takes about 30 minutes, but I was prepping practically all of the time between the morning call and the final hearing.

So, it really depends on all of the factors described in Rule 4-200. Hopefully, what I've just described gives you some ideas of how to fight about the bill.

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