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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 118175
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I had 5k to hire an attorney. He required a 5K retainer. He

Customer Question

I had 5k to hire an attorney. He required a 5K retainer. He has a good rep and good peer rating on Martindale. I asked him if he was friends with the opposing counsel (I’ll call John) which he said no. I made it clear that I would not be interested in hiring anyone who was friends with this well connected attorney. Sanctions had to be filed. He assured me he only knew who he was from court.
I found out my attorney lied to me about knowing the opposing counsel and he was John’s sons soccer coach a couple of years ago. On the soccer teams website, the team chaperone and contact was John and his wife. They list each other as friends on FB. I confronted the lie to my attorney and demanded my money back but he refused. I stayed with him because there was not enough money left to start all over with a new attorney. This would explain why he said he would file sanctions against the opposing counsel but has not. In 9 months he has not filed any of the papers I have asked him to file.
When I hired him I had a list of things I wanted to have done. He would call me to have a meeting and charge $600.00. I would ask for an update on the projects I asked him to do and each time he had not done any of them. Time would go by and he not respond to email unless I put some heat in it. He would want to have another meeting where we would cover what exactly what we covered in previous meetings. Part of what needed to be done was a psych eval that came back completely off. The evaluator noted I said things about being disappointed my daughter was autistic. I never said that nor have I ever felt that way. I taped my interview with the psychologist and had proof I did not say those things. Even my attorney believed there people conspiring on this from the opposing counsel. That faulty report would be the only thing my Ex could use in court to try and get custody (I have sole custody of her). I told my attorney on many occasions not to send a copy of that report to opposing counsel unless they filed discovery so we could figure out what to do about the defective report. My attorney said he should do a deposition on him to which I agreed should be done but he did not do that either.
My Ex has filed for custody to harass me, she has no valid claim there has been a ‘material and substantial change’ in circumstances. I have been the stay-at-home parent with our child since birth. My Ex involved her in a DUI crash witch the DCSF investigated and made a determination of “failure to protect a child”. Even when we met with the custody evaluator for her report, she said she was not going to recommend any change in custody. One would think the issue was done. Then I got notice they were taking it to trial. I couldn’t figure out why. I wrote and asked my attorney if by chance he sent them the faulty psych eval which I told him not to send. He replied and said he sent it and stated there was not legal reason not to send it. My thought is the legal reason was he was told by his client not to send it. He later emailed me after sending the notice of trial that I had used all my 5k retainer and owed him $1200.00 and unless I paid he was withdrawing from the case.
Q1. My question is, before I respond to him, is he correct in saying because there is no legal reason not to send the report justifies why he sent it despite my directive to him not to send it?
To this day, he has not completed 1 of the items I asked to be done and the only papers he has sent is his invoices and the eval to the opposing attorney. I feel confident that the erroneous psych eval is why they decided to go to trial. Now he wants to withdraw as counsel.
Submitted: 2 years ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 2 years 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.

Legally, if there was a report that was available pursuant to discovery, which the evaluation would have been, then he had to send the report. If you say the report is faulty, that is up to you to now get him to prove with evidence, but legally if the report exists, he had to surrender it if he was asked for it.

As far as the retainer fees, unfortunately these attorneys bill by the hour of their time, so $5000 can get burned up pretty fast, so if he has sent you a bill showing where the initial retainer went, you need to pay him as asked.

If you have a problem with the psych evaluation you claim is erroneous, then you need to get your attorney the evidence and witnesses to prove that the report is erroneous as he will have use that to get the report thrown out in court.
Customer: replied 2 years ago.

Thanks. They have never sent discovery papers ... are you saying if it is something that could be discoverable, he has to send it even if there has been no discovery request?

If I paid to have a psych eval done by a psych eval done by a psychologist of my choice, could I use that one in court or do I just have to get the one thrown out?

(FYI Im still waiting for the required 'initial disclosures from when she filed, they did not produce them and that was one of the items my attorney was suppose to get from the opposing counsel but he has not done it)

Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.

If it is discoverable and there was a prior ongoing discovery request then yes. Also, if this was part of the initial disclosures your attorney had to send, then he had to send it. Other than that he should not have sent it without your consent. However, now it is done, you have to refute the report with the new evaluation.

The attorney can use for the report you paid for and use that to argue the other report is wrong and your attorney will need to have that other doctor testify as to why the first report is erroneous and should not be considered by the court.
Customer: replied 2 years ago.

When I took the eval test I signed a paper that the only people who could receive a copy was the home evaluator and my attorney.

There has been no a discovery request made at anytime from the opposing attorney. So I just want to clarify -- since there has been no discovery request made by the opposing attorney, my attorney was not under legal obligation to sent it to the opposing attorney. Is that correct?

And since there has been no discovery request, my attorney should have followed my directive and not sent the report. Is that correct?

Thanks

Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question reply.

If you did not authorize your attorney to do so, he was not under a general obligation to do so without a request.