Is this a reasonable refund request?

April 1, 2009 11:13 AM

Is it reasonable to ask my attorney for a refund for filing a motion that had no effect?

I hired a bankruptcy attorney and due to issues with a tax refund that he was never able to get straightened out with the local trustee, that trustee filed a motion to dismiss in late 2008. After filing a plan modification, I got caught up on the trustee payments but she never would go along with the modification and we were set for a hearing during the last week of March.

A week prior to that hearing, I decided to not go through with the bankruptcy. I e-mailed my attorney and asked if he could file a voluntary motion to dismiss, reasoning that this would "look better" to future creditors AND to have approximately $4,000 in undisbursed funds held by the trustee returned to me. I paid him $500 to file this motion (along with $3,000 through the bankruptcy plan, and another $500 for the modification), which he did file on the same day we met. I did not ask if the trustee's motion to dismiss would be a problem (I forgot to bring it up) and he did not say. I was keen on getting the $4,000 in held funds returned to me so I can reinstate two car loans, and discussed this with my attorney.

Two days after the hearing date had come and gone a visiting judge--that is, not the judge assigned to my case--signed the trustee's motion to dismiss and dismissed my motion as moot. The trustee's motion includes language requiring that any held funds be disbursed in accordance with any confirmed bankruptcy plan.

So, back to my original question: Is it reasonable of me to ask my attorney for a refund since my motion was basically useless, and I had no way of knowing in advance that the $500 would be poured down a dry hole? To be clear, I would have no problem having paid the $500 if the motion had been of use, but I feel like he should have known that the trustee's motion would "outrank" mine.

posted by fireoyster to law & government (13 comments total)

No. It is not reasonable.

You asked the lawyer to do something, on billable time, and he did it. He deserves to be paid for the time he spent.
posted by Chocolate Pickle at 11:21 AM on April 1, 2009 [8 favorites]

I am not your attorney, and this is not legal advice.

Do you think it is reasonable to ask someone to work for free after you previously agreed to pay him for his work and he adequately performed the work that you specifically asked him to perform?
posted by The World Famous at 11:22 AM on April 1, 2009 [3 favorites]

I'm not an attorney; this isn't legal advice.

I think it's totally reasonable to ask him. I don't think it's reasonable to demand anything; you may not be entitled to a refund, but why not bring it up?

Most attorneys are nice people, and are aware of and sensitive to their clients' financial needs. You're in bankruptcy, or close to it, and obviously every penny counts. Just be nice, courteous, and explain your situation. Maybe you can work out a deal where you get back a portion of the original 500.

My dad is an attorney, and I know that he reguarly cuts payments and makes deals for people who are struggling. It's just good business to be reasonable, because you'll remember it the next time you need a lawyer! But anyway, smaller practicioners are not hard and fast with their fees.
posted by HabeasCorpus at 11:35 AM on April 1, 2009

Why would you? What part of the job didn't he do?
posted by small_ruminant at 11:43 AM on April 1, 2009

Thanks for the replies so far. I guess my problem comes from thinking he should have told me (provided counsel?) that the outcome I received--the trustee's motion being granted instead of mine--would be a possibility. Then again, I didn't ask or think to ask, so...

I'm not really mad at him, for the record; it's probably more "buyer's remorse" than anything. I posted the question here rather than fire off an e-mail I might regret...
posted by fireoyster at 11:50 AM on April 1, 2009

I guess my problem comes from thinking he should have told me (provided counsel?) that the outcome I received--the trustee's motion being granted instead of mine--would be a possibility.

He does not have an obligation to tell you every conceivable thing that could happen. You asked him to do something, he did it, and you didn't get the result you wanted. When a motion is filed, there is always a possibility that the motion will not be granted or that it will be rendered moot.

It is good of you to come here first, before firing off that e-mail.
posted by jayder at 11:53 AM on April 1, 2009

No, it is not reasonable. While your attorney is probably empathetic (--he is, after all, working in bankruptcy law and probably accustomed to clients who cannot/do not think that they should have to pay their bills--) attorneys get paid for the work that they do, not the end results that occur. Unless you have a contingency fee arrangement or some other prior agreement with your attorney, this is the way that it goes.
posted by applemeat at 11:53 AM on April 1, 2009

He does not have an obligation to tell you every conceivable thing that could happen. You asked him to do something, he did it, and you didn't get the result you wanted. When a motion is filed, there is always a possibility that the motion will not be granted or that it will be rendered moot.

No, but isn't an attorney expected to provide the client with a reasonable understanding of possible outcomes? I don't know the state law, the bankruptcy proceedings, the particular motions, etc. But if client asks attorney to file a motion, and attorney knows there is a strong possibility that said motion will be superceded by Trustee's motion to dismiss, isn't the attorney required to disclose this to the client rather than just file the motion and rack up the bills? Attorneys are held to a higher standard then simply doing what they are asked- they have to advise clients on what are good/bad legal strategies.

OP, I see your point, although I don't think the attorney was negligent or remiss in his duties here (he might be just as suprised as you are about the motion to dismiss).

However, as I said above, from a business standpoint he might be very willing to cut you a deal. If I were an attorney, I'd totally shave a few hundred dollars from my bill in the hopes that you may bring me future business. If you need the money fairly desperately, why not tell him so?
posted by HabeasCorpus at 12:10 PM on April 1, 2009

But if client asks attorney to file a motion, and attorney knows there is a strong possibility that said motion will be superceded by Trustee's motion to dismiss...

I'm not sure that the question makes it clear that there was a "strong possibility," but personally (as a lawyer, but NOT yours) am inclined to suggest that knowledge of and complications arising from an already-pending motion is something I would have explained to a client. Whether that rises to the level of malpractice or even adequate-but-poor representation is too fact-based a question to answer here, in light of procedural posture, likelihood of success, etc.

Frankly, I don't think it hurts to ask. In a corporate setting, I have asked counsel to compromise on bills not merely because desired results were not obtained, but because the scope of the representation was not really going according to plan. If you choose to ask for a compromise of part of your fees, please do so very professionally and politely - I think you are more likely to get some success from sympathy rather than posturing.
posted by bunnycup at 12:46 PM on April 1, 2009

Thanks Bunnycup,

you said what I was trying to, only more eloquently. :)
posted by HabeasCorpus at 12:58 PM on April 1, 2009

My initial instinct was the same as the first commenters: you asked for it, of course you should pay for it. But if bunnycup, a lawyer, doesn't think it hurts to ask, then I guess it doesn't hurt to ask. But for heaven's sake do so in a friendly, "just asking" way rather than an aggressive "WTF, I shouldn't have to pay this" way—not that you sound like you're inclined towards the latter, and good for you for being reasonable about it.
posted by languagehat at 2:28 PM on April 1, 2009

I don't think it hurts to ask, either. But I don't think it would be at all unreasonable for an attorney to decline such a request.
posted by The World Famous at 2:44 PM on April 1, 2009

My father-in-law's a lawyer, and in certain friendly circumstances, I've seen him do this kind of thing. I've also heard him say things like, "what a dope of a client - thought I would do work for free!"

So asking is probably a good idea. Just be prepared for any reaction.
posted by koeselitz at 4:46 PM on April 1, 2009