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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33763
Experience:  Began practicing law in 1992
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civil remedies against my lawyer

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I received a PI in Texas in Dec. 2011. I consulted with a lawyer to look into the possibility of getting a deferred adjudication and to have the charge either expunged or the records sealed (I have no background). I immediately found a lawyer and after 1.5 years, I found out I had a court date on July 10th. I was told my lawyer would contact me a week before to discuss my case. After my lawyer didn't contact me (again), I finally got in touch with him. He asked me to come to his office, but before this he faxed me a copy of the police report which supported what I always felt; I was guilty. At our meeting my lawyer said he'd send notice to the court I wanted a deferred adjudication. He also told me I needed to meet him at the court the following week to get this taken care of. On the court date I showed up early and met with my lawyer who had another client present. Both the other client and I were told to wait in the lobby while our lawyer spoke to someone in the court. After half an hour or so, our lawyer came back and told us to meet with him outside. He stated the "expletive" judge wasn't hearing anything and didn't want to work with him. He also said he could play this game & at this point we should leave and although we would have a warrant issued for our arrest, he would take care of it. He said he would look at getting us on another docket and would call us later to tell us what was going on. After returning to work I returned a call to my former apartment manager stating a Marshall had stopped by and asked for me. Having no idea why they would want to see me, I decided to check if it had anything to do with my case. I found out I had a $300 failure to appear fine for not being in court that morning, and there was a warrant for my arrest with a $5000 bond. I was shocked! I called my lawyer's office and was again told they would take care of it and would contact me shortly. Since they never called, I contacted my lawyer's secretary who said she'd sent notice to the municipal court to clear the warrant and since the person who could do this was gone, she'd left a message to have it taken care of when the court rep. returned the following morning. I followed up with a call to the court myself and found I would have to wait. The next morning I called the court rep. to see what was going on. She told me I did have a warrant out for my arrest and what the secretary sent over was just a notice of legal representation, which wasn't going to drop the warrant. I also found out my lawyer had previously turned down 4 offers for deferred adjudication without my knowledge or approval. The court rep said since the judge was there she could see what my options were. She later called back to say I had two options: try to talk to the judge and see if I could explain my case. With this option she stated I could very well be arrested on the spot if I appeared at the court. The second option was to fire my lawyer and change my plea to "guilty" and see if I could just pay the original PI fine plus the $300 failure to appear fine. She said the judge was willing to drop the warrant if I did that. After hearing all this I was finally able to contact my lawyer directly and told him about what was going on and asked if I could meet with him to see what to do. He said he was out of town, but if I were to get arrested, I should call him at anytime of the day or night. When I told him I really felt this was something I needed to discuss with him, he said he'd call one of his associates to meet with me. He later called back and said what I needed to do was to pay the difference between the bond I originally paid (which was $500), and my PI fine ($376) plus the failure to appear fee ($300). So instead of getting a refund of $124 as my lawyer stated would likely be the case, I had to pay an additional $291. When I stressed to my lawyer I thought he was supposed to take care of this, he said he would come in to town to see what he could do. So to finally make this long story short, I contacted him after he texted me and was told he paid the $291 fine, the warrant was dropped, and he plead guilty to the charge. When I asked him if I could still have the case expunged or the records sealed, he said no. I told him at this time I was going to file a grievance with the State Bar in Texas and let him go as my lawyer. However, I would like to know if there is anything else I can do? I hired this lawyer with the expressed desire to possibly get this PI expunged. Now this may not happen and I'm out the original retainer of $1000 plus the potential $124 I could've collected. Is there any way I can have this case reversed due to negligence on the part of my lawyer? There were 4 offers for deferred adjudication and I never knew of any of them. What about suing for malpractice; could I possibly do this? I'm also very concerned my lawyer will try to get the $291 he paid for the failure to appear fine from me. Will I have to pay him? Thanks!

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

What is the date of the judgment on the original PI?
Customer: replied 4 years ago.

I received the citation for a PI on 12/31/2011

I was told a guilty charge was entered on 7/12/13.

You should still be within your time to appeal the guilty finding. Since he was the one that entered the plea then you should be able to file a Motion for New Trial or Motion to Withdraw Plea and get the judge to allow you to start over. You can do it yourself but, of course, it would be much easier to have a lawyer do it for you.

You can pursue a case for malpractice however, you may have a problem finding an attorney to pursue the case for you on a % basis as the damages aren't going to justify the time and expense involved. You can hire an attorney and pay their fee to pursue it for you and then you can also sue for the amount you pay in attorney's fees.

The attorney can pursue you for the $291 but it would surprise me if he did so and, in addition, if he sued based on your facts he shouldn't win since the failure to appear fine was directly attributable to him telling you to leave the court.
Customer: replied 4 years ago.

Thanks for your time and assistance. How long do I have to file for a Motion for a New Trial or Motion to Withdraw Plea?

It depends on the court you were in. If you were in county court it is 30 days. If you were in JP court it is, I believe, 10 days but for some reason I can't pull the rules up right now to check that time.
Customer: replied 4 years ago.

Ok. I'll get on it tomorrow. I may have to ask a follow up question or two if that's ok?


I truly appreciate your assistance!!


Have a good one!

That's fine, once you issue your Positive Rating the question locks open and you can come back days or even months later if you have additional questions.

Dwayne B. and 3 other Legal Specialists are ready to help you
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR JD 1992” in the subject line or as the first words of your question and I will pick up as soon as I see it.
Customer: replied 4 years ago.

Good evening,

I checked in a with a lawyer and he stated that this was a minor offense, but he was willing to look at it for me to see if there was anything he could do about me withdrawing my plea (I really don't want this to go to trial, so I'm not sure about the Motion for a New Trial). He wanted me to go the court (which is a municipal court) to get a copy of the case against me to see what my lawyer had done in the past. When I went to the court and asked if I could get a copy of everything that happened, they told me I needed to write to the judge with specific requests on what I needed. I'm not exactly sure what to ask for. The lawyer I asked wasn't hired and only said he would look over what I brought him to see if to proceed or not. Could I ask you if you know what I should be asking for? Since I have an opportunity to address the judge for this request, can I also provide a brief explanation as to why I'm even trying to reverse such a "minor offense"? I would like the opportunity to express I wasn't aware of what my lawyer was doing and didn't agree with how he proceeded. I would like to ask for an opportunity to start over so I can state my case of how remorseful I am and would like the chance to have another deferred adjudication. Apparently the judge was really upset about everything that happened, so I'm not sure if this would be wise.....



Thanks again for your time.

I'm not sure why the clerk would tell you that because you actually aren't supposed to write directly to the judge at all. That is what is known as an "ex parte" communication and isn't allowed. You did the correct thing because you are supposed to get copies of the records from the clerk not the judge.

The lawyer is going to want a copy of the complete file, including the judgment and the docket sheet. The reason is that he is going to want to try and piece together what the other lawyer did and didn't do and the only way to do that is to have a complete copy of everything.

You might be better off, if it is at all possible, to personally go to the clerk's office and get your copies. Just ask for a copy of everything but tell them you don't need it "certified". They will charge you for the copies but there shouldn't be a lot of pages. There is an extra charge to certify the copies but you don't need them certified.
Customer: replied 4 years ago.


Thanks. I'll try this first thing Monday morning. Hopefully all will work out and any additional communications will be with a positive update.


Best Regards!!

Best wishes to you! Let me know how it goes.