How can we respond to a bounced $16k check from a law firm in NYC?
January 25, 2014 12:13 AM Subscribe
What are some first steps that should be taken when a settlement check written to a client (resident in NYC) by an NYC law firm bounces? Aside from this Better Business Bureau page about filing complaints against lawyers, is there any oversight mechanism, or regulatory body, or state or city office that can help to resolve this?
Background: Two years ago my partner was hit by a car while crossing the street. He hired a personal injury law firm recommended by someone who had used that firm before. They dealt with the insurance company and reached a settlement. The amount after the lawyers fees to be paid was around $16,000.
For the last year, my partner has been in a back and forth with the firm, trying to get the check. Every time he called, the lawyer was out of the office. They wouldn't mail the check, they wanted to hand it over in person, they arranged several meetings but the firm would always cancel the day of. This went on until finally my partner said he was coming to the office and would sit there until they gave him the check. So they then agreed to mail him a check, he received it and deposited it.
The $16,000 check bounced and he just found out today. As a result, the bank froze my partner's bank accounts because, they said, this is 'shady activity.' He called the lawyer, who said there's nothing he could do because there is no one at the office until Monday. Lawyer said he has no idea how that could have happened. Admittedly, it's possible that the law firm will fix the issue on Monday, and that it was a clerical error - but considering how evasive they have been over the last year, we're concerned and want to gather resources so we can begin a response. At the very least we plan to ask them for a cashiers check on Monday. Other steps?
Quis custodiet ipsos custodes? Or more specifically: Who watches the lawyers?
Background: Two years ago my partner was hit by a car while crossing the street. He hired a personal injury law firm recommended by someone who had used that firm before. They dealt with the insurance company and reached a settlement. The amount after the lawyers fees to be paid was around $16,000.
For the last year, my partner has been in a back and forth with the firm, trying to get the check. Every time he called, the lawyer was out of the office. They wouldn't mail the check, they wanted to hand it over in person, they arranged several meetings but the firm would always cancel the day of. This went on until finally my partner said he was coming to the office and would sit there until they gave him the check. So they then agreed to mail him a check, he received it and deposited it.
The $16,000 check bounced and he just found out today. As a result, the bank froze my partner's bank accounts because, they said, this is 'shady activity.' He called the lawyer, who said there's nothing he could do because there is no one at the office until Monday. Lawyer said he has no idea how that could have happened. Admittedly, it's possible that the law firm will fix the issue on Monday, and that it was a clerical error - but considering how evasive they have been over the last year, we're concerned and want to gather resources so we can begin a response. At the very least we plan to ask them for a cashiers check on Monday. Other steps?
Quis custodiet ipsos custodes? Or more specifically: Who watches the lawyers?
Best answer: You probably want the New York State Attorney Grievance Committee.
posted by fireoyster at 12:20 AM on January 25, 2014 [4 favorites]
Response by poster: This is good advice, and it is the same as the BBB link in the post. I do appreciate your help, and look forward to more information that will help with action and resolution especially, rather than the complaints process.
posted by jardinier at 12:29 AM on January 25, 2014 [1 favorite]
posted by jardinier at 12:29 AM on January 25, 2014 [1 favorite]
Yeah, go ahead. A bounced check from a law firm is potentially (likely) a sign that the firm is not following the financial requirements in the rules of professional conduct. It's going to be a big deal. It may not get you the remedy you want in the time frame you want, but it's the place to start.
posted by emmatrotsky at 12:39 AM on January 25, 2014 [1 favorite]
posted by emmatrotsky at 12:39 AM on January 25, 2014 [1 favorite]
Best answer: Wow. This is a very big deal.
Settlement checks are supposed to be written out of a trust account that is solely devoted to client funds. A check is never never NEVER supposed to bounce from the trust account. When one bounces, it is a huge deal and should be treated as such.
I know an attorney who was suspended for some trust account issues that were comparatively minor, when considered in light of your complaint.
posted by jayder at 12:43 AM on January 25, 2014 [12 favorites]
Settlement checks are supposed to be written out of a trust account that is solely devoted to client funds. A check is never never NEVER supposed to bounce from the trust account. When one bounces, it is a huge deal and should be treated as such.
I know an attorney who was suspended for some trust account issues that were comparatively minor, when considered in light of your complaint.
posted by jayder at 12:43 AM on January 25, 2014 [12 favorites]
Response by poster: The Grievance Committees, as listed in my original post and also in the link from fireoyster, say that "In response to complaints, the Committee is limited to disciplining the offending lawyer or referring the matter to a mediator" (source)
So, if this is a big deal - who is the body in charge of doing something about it? The DA, the police, the bar? I wonder if it's the same as writing a bad check in general, or different? I feel like I'm missing an agency somewhere whose job it is to ensure things like this don't happen, some kind of oversight...?
posted by jardinier at 12:47 AM on January 25, 2014
So, if this is a big deal - who is the body in charge of doing something about it? The DA, the police, the bar? I wonder if it's the same as writing a bad check in general, or different? I feel like I'm missing an agency somewhere whose job it is to ensure things like this don't happen, some kind of oversight...?
posted by jardinier at 12:47 AM on January 25, 2014
Response by poster: Jayder, your mention of a "trust" led me to this NY Law Fund guide Q&A:
"What happens if a trust account check bounces?
A bounced check on an attorney trust account is a signal that law client funds may be jeopardy. Beginning in 1993, banks in New York State will report dishonored checks on attorney trust accounts to the Lawyers' Fund for Client Protection; for referral by the Lawyers' Fund to the proper attorney grievance committee for such inquiry as the committee deems appropriate.
These bank notices are required by the Appellate Divisions' Dishonored Check Reporting Rules. A "dishonored" instrument is a check which the lawyer's bank refuses to pay because there is insufficient funds in the lawyer's special, trust, or escrow account.
The Lawyers' Fund will hold each dishonored check notice for 10 days to permit the filing bank to withdraw a report that was sent in error. However, the curing of an insufficiency of funds by a lawyer or law firm will not constitute reason for the withdrawal of a dishonored check notice."
This suggests to me, if I'm reading it correctly, that the bouncing of this check would have to be automatically reported by the bank to the committee.
posted by jardinier at 1:00 AM on January 25, 2014
"What happens if a trust account check bounces?
A bounced check on an attorney trust account is a signal that law client funds may be jeopardy. Beginning in 1993, banks in New York State will report dishonored checks on attorney trust accounts to the Lawyers' Fund for Client Protection; for referral by the Lawyers' Fund to the proper attorney grievance committee for such inquiry as the committee deems appropriate.
These bank notices are required by the Appellate Divisions' Dishonored Check Reporting Rules. A "dishonored" instrument is a check which the lawyer's bank refuses to pay because there is insufficient funds in the lawyer's special, trust, or escrow account.
The Lawyers' Fund will hold each dishonored check notice for 10 days to permit the filing bank to withdraw a report that was sent in error. However, the curing of an insufficiency of funds by a lawyer or law firm will not constitute reason for the withdrawal of a dishonored check notice."
This suggests to me, if I'm reading it correctly, that the bouncing of this check would have to be automatically reported by the bank to the committee.
posted by jardinier at 1:00 AM on January 25, 2014
The NYS grievance committee is part of New York's consolidate court system. In order to be granted the right to appear before courts in the state, an attorney has to receive an official order from a specific court in that state. The courts of the state are responsible for supervising attorneys so appealing to the committee that hears grievances is the right way to go. As others have mentioned, bouncing a check (why was it bounced, was it returned for non-sufficient funds?) for a client settlement is a very, very serious problem.
posted by fireoyster at 1:00 AM on January 25, 2014 [2 favorites]
posted by fireoyster at 1:00 AM on January 25, 2014 [2 favorites]
Response by poster: Thank you all, your answers are very helpful in getting me the right terms to find more information and get a grasp on the situation that I see I was lacking!
I also see that the NY Law Fund FAQ notes: "A law client who accuses a lawyer of misusing money and property must report the loss to an Attorney Disciplinary (Grievance) Committee; and to the District Attorney in which the lawyer maintained law offices."
And their online form has check-boxes for reporting the loss to the Police as well as the Committee and the DA.
Assuming that the law firm does resolve this, and gives him a cashiers check or some other instrument on Monday, and the Bank accepts it and the funds are verified, should we still report it to the committee?
And, what is the appropriate response to this from the firm? Should we expect them to do anything other than pay the amount owed?
posted by jardinier at 1:09 AM on January 25, 2014
I also see that the NY Law Fund FAQ notes: "A law client who accuses a lawyer of misusing money and property must report the loss to an Attorney Disciplinary (Grievance) Committee; and to the District Attorney in which the lawyer maintained law offices."
And their online form has check-boxes for reporting the loss to the Police as well as the Committee and the DA.
Assuming that the law firm does resolve this, and gives him a cashiers check or some other instrument on Monday, and the Bank accepts it and the funds are verified, should we still report it to the committee?
And, what is the appropriate response to this from the firm? Should we expect them to do anything other than pay the amount owed?
posted by jardinier at 1:09 AM on January 25, 2014
from random googling, and in California, not NYC (although I'm guessing it's a general principal and general terminology):
... the (Trust) account must, at all times, have funds sufficient to cover the balance owed to all clients (not solely any one individual client).
According to the California Supreme Court, “willful misappropriation” occurs when the balance in the trust account falls below the amount held in trust for and due to the client(s). Chefsky v. State Bar, ...
Some states have mandatory bar associations - a lawyer has to be a member to practice, and is "disbarred" when they're kicked out for stuff like misappropriating funds or trust money from a trust account. New York's bar is a voluntary bar association, which does 'social, educational, and lobbying functions, but does not regulate the practice of law or admit lawyers to practice or discipline', and so it all works as per fireoyster's comment.
posted by sebastienbailard at 1:22 AM on January 25, 2014 [1 favorite]
... the (Trust) account must, at all times, have funds sufficient to cover the balance owed to all clients (not solely any one individual client).
According to the California Supreme Court, “willful misappropriation” occurs when the balance in the trust account falls below the amount held in trust for and due to the client(s). Chefsky v. State Bar, ...
Some states have mandatory bar associations - a lawyer has to be a member to practice, and is "disbarred" when they're kicked out for stuff like misappropriating funds or trust money from a trust account. New York's bar is a voluntary bar association, which does 'social, educational, and lobbying functions, but does not regulate the practice of law or admit lawyers to practice or discipline', and so it all works as per fireoyster's comment.
posted by sebastienbailard at 1:22 AM on January 25, 2014 [1 favorite]
Response by poster: Thank you - I had read that language in a few places. I also found these interesting:
Why a trust payment can take so long.
How a trust account check can bounce.
And to answer fireoyster's parenthetical question above, it was returned NSF, so yes: non-sufficient funds.
posted by jardinier at 1:31 AM on January 25, 2014
Why a trust payment can take so long.
How a trust account check can bounce.
And to answer fireoyster's parenthetical question above, it was returned NSF, so yes: non-sufficient funds.
posted by jardinier at 1:31 AM on January 25, 2014
Best answer: What we're talking about now is one of the very few things that can get a lawyer in serious trouble with his state's disciplinary, up to and including disbarment.
Contact the Grievance Committee.
Contact your DA.
That should set things in motion.
It's entirely possible that this is just a bookkeeping error on the part of the firm. That's not a good sign by any means, but it would suggest that the firm isn't actively trying to screw you. Regardless, you have to protect yourself, so call the appropriate authorities and let the situation develop.
posted by valkyryn at 3:46 AM on January 25, 2014 [1 favorite]
Contact the Grievance Committee.
Contact your DA.
That should set things in motion.
It's entirely possible that this is just a bookkeeping error on the part of the firm. That's not a good sign by any means, but it would suggest that the firm isn't actively trying to screw you. Regardless, you have to protect yourself, so call the appropriate authorities and let the situation develop.
posted by valkyryn at 3:46 AM on January 25, 2014 [1 favorite]
This suggests to me, if I'm reading it correctly, that the bouncing of this check would have to be automatically reported by the bank to the committee.
Provided, of course, that the check was, in fact, written from a trust account. Can you confirm it was actually written from a trust account, and not simply some side account the lawyer keeps?
Frankly, it sounds a lot like your partner is getting hosed by the lawyer.
posted by Thorzdad at 5:09 AM on January 25, 2014 [3 favorites]
Provided, of course, that the check was, in fact, written from a trust account. Can you confirm it was actually written from a trust account, and not simply some side account the lawyer keeps?
Frankly, it sounds a lot like your partner is getting hosed by the lawyer.
posted by Thorzdad at 5:09 AM on January 25, 2014 [3 favorites]
Assuming that the law firm does resolve this, and gives him a cashiers check or some other instrument on Monday, and the Bank accepts it and the funds are verified, should we still report it to the committee?
Including the fees that the bank charged too I hope.
I'd still report it. Even if you get out of this OK, it'd help protect other clients against these shenanigans.
posted by grouse at 5:13 AM on January 25, 2014 [3 favorites]
Including the fees that the bank charged too I hope.
I'd still report it. Even if you get out of this OK, it'd help protect other clients against these shenanigans.
posted by grouse at 5:13 AM on January 25, 2014 [3 favorites]
N-thing those telling you to report this to the bar. I'm a lawyer and agree that bouncing a check from a client trust fund is widely regarded as the easiest way to get disbarred.
posted by ewiar at 7:12 AM on January 25, 2014 [1 favorite]
posted by ewiar at 7:12 AM on January 25, 2014 [1 favorite]
+1 on contacting the New York bar, ASAP! Their ethics committee will be all over this.
posted by Neekee at 7:38 AM on January 25, 2014 [1 favorite]
posted by Neekee at 7:38 AM on January 25, 2014 [1 favorite]
This is also the time that I would be reading the settlement agreement again carefully. If you are having this much trouble obtaining the funds - are you absolutely sure you can trust them to correctly calculate the amount your partner is due? I would trust nothing from them that I could not independently confirm.
posted by NoDef at 7:56 AM on January 25, 2014 [6 favorites]
posted by NoDef at 7:56 AM on January 25, 2014 [6 favorites]
On the webpage for the New York State Attorney Grievance Committees, you'll see a link, on the left-hand side, to the Lawyers' Fund For Client Protection. Check it out, and if the problem with this settlement check does not get worked out soon, consider filing a claim.
As described on the FAQ page, the "The Lawyers' Fund was established . . . to provide reimbursement to law clients who have lost money or property as a result of a lawyer's dishonest conduct in the practice of law. The Lawyers' Fund is a remedy for law clients who cannot get reimbursement from the lawyer who caused the loss, or from insurance or other sources."
Also, "[t]he fund is fiananced by the 271,000 members of the legal profession in New York State through a registration fee required by law. Since 1982, upwards of $132 million in awards of reimbursement have been paid to deserving law clients." My husband and I, both lawyers in NYS, have been paying that fee biennially for years. It pleases me that it might help people like you!
posted by merejane at 7:57 AM on January 25, 2014 [3 favorites]
As described on the FAQ page, the "The Lawyers' Fund was established . . . to provide reimbursement to law clients who have lost money or property as a result of a lawyer's dishonest conduct in the practice of law. The Lawyers' Fund is a remedy for law clients who cannot get reimbursement from the lawyer who caused the loss, or from insurance or other sources."
Also, "[t]he fund is fiananced by the 271,000 members of the legal profession in New York State through a registration fee required by law. Since 1982, upwards of $132 million in awards of reimbursement have been paid to deserving law clients." My husband and I, both lawyers in NYS, have been paying that fee biennially for years. It pleases me that it might help people like you!
posted by merejane at 7:57 AM on January 25, 2014 [3 favorites]
Response by poster: Thank you valkyryn, I too hope it's a bookkeeping error and wouldn't think otherwise if it weren't for how shifty they had behaved over the past 6 months about getting the check to him to begin with. Though I understand clearing checks and hospital bills, etc. can take time, it wasn't about that in this case - apparently.
To answer Thorzdad's good question: I just looked at the check and see that it was written from an "Operating Account" for the Law firm. I take it that is shouldn't have been the case and that this means the bank wouldn't automatically report it since it wasn't written from a trust. Is there ever a reason for a law firm to pay a settlement from an operating account rather than from a trust?
NoDef, we don't have any documents - so, this means there should be a document, a 'settlement agreement' that we should be able to get a copy of? The only document received was the check with a letter saying "In accordance with the settlement of the above matter, enclosed please find a check in the amount of $XXXXX which represents your share of the settlement proceeds after a deduction of one-third attorney's fee. Mr. XXXX (the attorney) has waived reimbursement of expenses." Apparently there was a settlement agreement that my partner signed, which he says they brought to him back when he was in the hospital - but he was never given a copy.
Thank you for the NY Lawyer's Fund link merejane, I had seen that and looked through the claim form and FAQ which were really helpful. It's good to know a resource like that exists in case it is needed. What shocks me is that settlement money paid by an insurance company to my partner isn't just given to him directly. Reading the NY DAs web site I see that there is a history of attorney's stealing clients settlement money, which suggests that they shouldn't be entrusted with it to begin with!
posted by jardinier at 8:41 AM on January 25, 2014
To answer Thorzdad's good question: I just looked at the check and see that it was written from an "Operating Account" for the Law firm. I take it that is shouldn't have been the case and that this means the bank wouldn't automatically report it since it wasn't written from a trust. Is there ever a reason for a law firm to pay a settlement from an operating account rather than from a trust?
NoDef, we don't have any documents - so, this means there should be a document, a 'settlement agreement' that we should be able to get a copy of? The only document received was the check with a letter saying "In accordance with the settlement of the above matter, enclosed please find a check in the amount of $XXXXX which represents your share of the settlement proceeds after a deduction of one-third attorney's fee. Mr. XXXX (the attorney) has waived reimbursement of expenses." Apparently there was a settlement agreement that my partner signed, which he says they brought to him back when he was in the hospital - but he was never given a copy.
Thank you for the NY Lawyer's Fund link merejane, I had seen that and looked through the claim form and FAQ which were really helpful. It's good to know a resource like that exists in case it is needed. What shocks me is that settlement money paid by an insurance company to my partner isn't just given to him directly. Reading the NY DAs web site I see that there is a history of attorney's stealing clients settlement money, which suggests that they shouldn't be entrusted with it to begin with!
posted by jardinier at 8:41 AM on January 25, 2014
jardinier --
Although I would like to think there's a "good reason" for the check bouncing, I confess that the attorney's evasiveness about meeting with your partner makes me fear the worst, that there was misappropriation of the funds.
However, it would help to kmow about the public profile of the attorney.
-- Is this a tiny law office, with one attorney or just a few attorneys? Or is it a larger practice?
-- Do they have a website?
-- Does the attorney have a "peer rating" on Lawyers.com, and if so, what is it?
-- Have you run this attorney's name through the disciplinary database for the state in which this case was settled, and did you find that the attorney has any discipline?
If the attorney "checks out" as solid in terms of reputation and so forth, I'd be much more inclined to think there is a legitimate reason for the NSF, but even then that would be no guarantee that there is nothing shady going on.
If you want to memail me the attorney's name/firm name, I'd be happy to look this stuff up.
posted by jayder at 8:42 AM on January 25, 2014 [1 favorite]
Although I would like to think there's a "good reason" for the check bouncing, I confess that the attorney's evasiveness about meeting with your partner makes me fear the worst, that there was misappropriation of the funds.
However, it would help to kmow about the public profile of the attorney.
-- Is this a tiny law office, with one attorney or just a few attorneys? Or is it a larger practice?
-- Do they have a website?
-- Does the attorney have a "peer rating" on Lawyers.com, and if so, what is it?
-- Have you run this attorney's name through the disciplinary database for the state in which this case was settled, and did you find that the attorney has any discipline?
If the attorney "checks out" as solid in terms of reputation and so forth, I'd be much more inclined to think there is a legitimate reason for the NSF, but even then that would be no guarantee that there is nothing shady going on.
If you want to memail me the attorney's name/firm name, I'd be happy to look this stuff up.
posted by jayder at 8:42 AM on January 25, 2014 [1 favorite]
Response by poster: Thank you jayder - I sent you the details about the firm and the attorney.
posted by jardinier at 8:47 AM on January 25, 2014
posted by jardinier at 8:47 AM on January 25, 2014
I just looked at the check and see that it was written from an "Operating Account" for the Law firm.
Okay. This is a problem. It means one of two things.
(1) whoever wrote the check to your partner is an idiot, and mistakenly pulled out a check from the operating account and not the client trust account, but that your funds ARE in the trust account.
(2) the firm actually deposited your partner's settlement funds into the operating account, which is a BIG NO-NO, it is what disciplinary authorities call "commingling of client funds with lawyer funds," and it's universally prohibited at least in the U.S. legal profession. The prohibition on commingling funds is about as basic as "washing your hands before surgery" is in the medical profession.
You may ask, "Well how would the attorney get their share?" They are supposed to deposit the settlement funds into the trust account and write themselves a check from the trust account.
If, when you go there on Monday, they immediately recognize the error and write you a check from the trust account, this may very well be an innocent mistake.
I just find it very hard to believe that a firm of any competence would "mistakenly" write you a check from the operating account.
posted by jayder at 8:49 AM on January 25, 2014 [2 favorites]
Okay. This is a problem. It means one of two things.
(1) whoever wrote the check to your partner is an idiot, and mistakenly pulled out a check from the operating account and not the client trust account, but that your funds ARE in the trust account.
(2) the firm actually deposited your partner's settlement funds into the operating account, which is a BIG NO-NO, it is what disciplinary authorities call "commingling of client funds with lawyer funds," and it's universally prohibited at least in the U.S. legal profession. The prohibition on commingling funds is about as basic as "washing your hands before surgery" is in the medical profession.
You may ask, "Well how would the attorney get their share?" They are supposed to deposit the settlement funds into the trust account and write themselves a check from the trust account.
If, when you go there on Monday, they immediately recognize the error and write you a check from the trust account, this may very well be an innocent mistake.
I just find it very hard to believe that a firm of any competence would "mistakenly" write you a check from the operating account.
posted by jayder at 8:49 AM on January 25, 2014 [2 favorites]
For everyone in the thread, my impression based on a quick search is that the firm checks out as quite reputable and solid (name partner is AV-rated, and has other significant professional recognition, etc.). That makes me feel better about this being an honest mistake, although of course we can't know for sure what's going on until the OP's partner follows up and the situation is resolved.
That's just my impression based on about ten minutes of looking around, so YMMV.
posted by jayder at 9:07 AM on January 25, 2014 [1 favorite]
That's just my impression based on about ten minutes of looking around, so YMMV.
posted by jayder at 9:07 AM on January 25, 2014 [1 favorite]
Response by poster: Hopefully, this is an honest mistake - as jayder suggests.
I guess the question that still kind of looms is - what's the right step now, today?
Wait until the office opens on Monday?
Call the attorney's today and ask them what they're going to do to resolve this?
etc?
posted by jardinier at 9:10 AM on January 25, 2014
I guess the question that still kind of looms is - what's the right step now, today?
Wait until the office opens on Monday?
Call the attorney's today and ask them what they're going to do to resolve this?
etc?
posted by jardinier at 9:10 AM on January 25, 2014
Last comment from me ... I would like to temper my answer here by saying I know nothing about New York's ethical rules for attorneys ... I find it hard to believe it's okay to write a settlement check from an operating account since that would seem to constitute a commingling of funds, but then again what do I know.
posted by jayder at 9:11 AM on January 25, 2014 [1 favorite]
posted by jayder at 9:11 AM on January 25, 2014 [1 favorite]
Call the attorney's today and ask them what they're going to do to resolve this?
etc?
I think this is a big enough deal to call them now. I'd be interested to hear what others in the thread think, though.
When I was practicing, I would expect to hear from a client immediately, if this happened.
posted by jayder at 9:13 AM on January 25, 2014 [1 favorite]
etc?
I think this is a big enough deal to call them now. I'd be interested to hear what others in the thread think, though.
When I was practicing, I would expect to hear from a client immediately, if this happened.
posted by jayder at 9:13 AM on January 25, 2014 [1 favorite]
every state has a licensing authority for lawyers, in california it's the state bar. the easiest and most common way to get disciplined/disbarred in california is to mishandle your attorney-client trust account. you may be sure that when a bar investigator calls an attorney, the investigator receives the attorney's full attention, unless the attorney is planning to leave the legal profession soon, e.g., terminal illness.
posted by bruce at 9:19 AM on January 25, 2014 [1 favorite]
posted by bruce at 9:19 AM on January 25, 2014 [1 favorite]
If you do manage to make contact, I'd make use of the phrase "commingling of client funds with lawyer funds" just to show them that you understand the implications. It's not accusatory or defamatory...it's what they actually did if your money is in the operating account. And by showing you understand the implications, you become a squeakier wheel (i.e. if they're having some fiscal catastrophe, they'll prioritize getting you paid rather than stringing you along further).
posted by Quisp Lover at 9:22 AM on January 25, 2014 [1 favorite]
posted by Quisp Lover at 9:22 AM on January 25, 2014 [1 favorite]
Also, re: the "simple mistake" versus "something fishy" question:
In addition to the evidence of their weird dodging over the past few months, they should definitely have more than $16K in their operating account.
posted by Quisp Lover at 9:28 AM on January 25, 2014 [1 favorite]
In addition to the evidence of their weird dodging over the past few months, they should definitely have more than $16K in their operating account.
posted by Quisp Lover at 9:28 AM on January 25, 2014 [1 favorite]
I think this is a big enough deal to call them now. I'd be interested to hear what others in the thread think, though.
It's the weekend. No one will deal with this until Monday. No real point in not waiting until then.
posted by valkyryn at 9:31 AM on January 25, 2014 [1 favorite]
It's the weekend. No one will deal with this until Monday. No real point in not waiting until then.
posted by valkyryn at 9:31 AM on January 25, 2014 [1 favorite]
In addition to the evidence of their weird dodging over the past few months, they should definitely have more than $16K in their operating account.
I strongly disagree with this.
posted by jayder at 9:35 AM on January 25, 2014 [3 favorites]
I strongly disagree with this.
posted by jayder at 9:35 AM on January 25, 2014 [3 favorites]
Response by poster: I can see both sides of that last point on the operating account. My understanding is that lots of people get into trouble with the client trusts because they draw from them to pay expenses as needed rather than paying themselves from them in lump sums - so the operating account might not reflect the holdings of the firm at all. At least, this is what I've learned since last night so.... Just Add Water, Instant Expert...
Again, all these answers are extremely helpful in getting my partner and I to think about the ways we should approach this. Thank you again to all.
posted by jardinier at 9:44 AM on January 25, 2014
Again, all these answers are extremely helpful in getting my partner and I to think about the ways we should approach this. Thank you again to all.
posted by jardinier at 9:44 AM on January 25, 2014
A dear friend of mine was an attorney until she "borrowed" money from her clients trust account. Not only was she disbarred, she spent two years in prison. This is in Louisiana.
posted by JujuB at 10:40 AM on January 25, 2014 [4 favorites]
posted by JujuB at 10:40 AM on January 25, 2014 [4 favorites]
jayder - operating a manhattan law firm involves - even for its pettiest expenses - drawing sums of that magnitude many times per month. If the funds are not drawn from the operating account (and they're not illegally dipping into trust accounts), where would these expenses be paid from? The senior partner sells off stocks/bonds whenever rent comes due?
posted by Quisp Lover at 11:08 AM on January 25, 2014
posted by Quisp Lover at 11:08 AM on January 25, 2014
Mod note: Folks, as usual, please don't get into debates with other commenters. Thanks.
posted by LobsterMitten (staff) at 11:09 AM on January 25, 2014
posted by LobsterMitten (staff) at 11:09 AM on January 25, 2014
this whole trust account versus operating account thing is irrelevant from the OP's perspective. the bottom line is, an already evasive lawyer fucked up big-time, and the bar will make things right, and OP should submit a complaint to the bar on monday.
posted by bruce at 12:24 PM on January 25, 2014
posted by bruce at 12:24 PM on January 25, 2014
this whole trust account versus operating account thing is irrelevant from the OP's perspective. the bottom line is, an already evasive lawyer fucked up big-time, and the bar will make things right, and OP should submit a complaint to the bar on monday.
posted by bruce at 12:24 PM on January 25
No argument here. I really look forward to hearing the resolution of this, because in my view, the way it has transpired versus the professional profile of the law firm is very dissonant to me. Client funds and trust accounts are the one thing you do. not. fuck. around. with. It's pretty much Rule 1 of lawyering.
posted by jayder at 4:08 PM on January 25, 2014 [1 favorite]
posted by bruce at 12:24 PM on January 25
No argument here. I really look forward to hearing the resolution of this, because in my view, the way it has transpired versus the professional profile of the law firm is very dissonant to me. Client funds and trust accounts are the one thing you do. not. fuck. around. with. It's pretty much Rule 1 of lawyering.
posted by jayder at 4:08 PM on January 25, 2014 [1 favorite]
Best answer: Speaking as a lawyer, but not your lawyer, this is a VERY SERIOUS problem. Co-mingling Client funds in an operating account is a serious ethical violation and is almost never a bookkeeping error.
Rest assured that your partners money will be returned since most state bar associations have client security funds that respond in situations like this.
You must report this to the appropriate Attorney Grievance Committee, if only to protect others from the attorney that caused this problem.
posted by mygoditsbob at 4:56 PM on January 25, 2014 [1 favorite]
Rest assured that your partners money will be returned since most state bar associations have client security funds that respond in situations like this.
You must report this to the appropriate Attorney Grievance Committee, if only to protect others from the attorney that caused this problem.
posted by mygoditsbob at 4:56 PM on January 25, 2014 [1 favorite]
Yeah, please do report back. Curious to hear how it works out (and pretty confident you'll wind up ok in the end).
posted by Quisp Lover at 5:03 PM on January 25, 2014 [2 favorites]
posted by Quisp Lover at 5:03 PM on January 25, 2014 [2 favorites]
Response by poster: Will definitely update the post to let everyone know the result - apparently there's not much we can do until Monday - but the continued advice and reflections, and wisdom are much appreciated.
posted by jardinier at 6:40 PM on January 25, 2014
posted by jardinier at 6:40 PM on January 25, 2014
I talked to an attorney (licensed in Texas) friend and his response was "WHAT?!" Even writing your partner a check from the operating account is a serious no-no because it creates the presumption that the attorney (or his staff, whom are under his supervision) are co-mingling funds as no settlement payments are supposed to even be in that account. (Bonus fail: If he did legitimately pay someone from the operating account, there is no legal method for him to remove the misspent funds from the settlement account that doesn't involve a lot of explaining if his trust records are audited.)
Here are some fun quotes from the State Bar of Texas' "A Lawyer's Guide to Client Trust Accounts" to amuse you while you are waiting for Monday morning:
In the case mentioned in that last quote, "[t]he trial court entered a final judgment of disbarment. ... [W]e affirm the trial court's judgment."
posted by fireoyster at 2:05 AM on January 26, 2014 [1 favorite]
Here are some fun quotes from the State Bar of Texas' "A Lawyer's Guide to Client Trust Accounts" to amuse you while you are waiting for Monday morning:
Upon purchasing trust account checks, the lawyer may want to consider ordering checks which are a different color or design from his or her operational account, so it is easy to tell the difference between the two accounts.- Page 8
Maintaining the Trust Account. Remember these three simple rules: * No commingling [attorney funds with client funds]!- Page 9
Disciplinary case law regarding [trust fund handling rule] misconduct includes the following cases: Neely v. Comm’n for Lawyer Discipline, 302 S.W.3d 331 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) – Lawyer's conduct in failing to keep his funds separate from client funds in trust account, in depositing personal funds into trust account, in paying for personal and business-related expenses from trust account and in failing to maintain records for trust account for five years violated rule of professional conduct governing the safekeeping of others' property.- Page 16
In the case mentioned in that last quote, "[t]he trial court entered a final judgment of disbarment. ... [W]e affirm the trial court's judgment."
posted by fireoyster at 2:05 AM on January 26, 2014 [1 favorite]
When I was in law practice, I didn't handle many civil cases so it was rare for me to have to disburse settlement funds. I did have a trust account, though, which was used primarily for restitution payments to people and businesses that my clients stole from or vandalized.
But anyway ... my trust account checks and operating account checks were not labeled to reflect what account they were from. And since my paralegal usually prepared the checks for my signature, on the rare occasions that I prepared the checks, I always had to check with her, "Is the trust account the blue or the pink checks?"
This is a long way of saying, I can understand a scenario in which a check would accidentally be written from the operating account. And I cannot see any attorney discipline resulting from an honest mistake like that. For, if the check was accidentally written from the operating account, but the funds were actually in the trust account, there would be no commingling of funds. And it would be easy for the lawyer to prove that the funds were deposited in the trust account.
However, I find such an honest explanation somewhat implausible in this case, because (1) the check was labeled "Operating Account," and (2) even if a staff member mistakenly picked up the wrong check form, (2) the attorney still had to sign it, and would have seen "OPERATING ACCOUNT" on the check and should have caught the error, and on top of all of that, (3) this is pretty much exclusively a personal injury firm as far as I could tell, so it should not be amateur hour when it comes to disbursing client funds. It's pretty inconceivable to me that they would get that wrong.
But against all that ... the named partner is an AV-rated attorney. And in my decade of law practice, I met a great many sleazy attorneys, and I became familiar with attorneys all along the spectrum of competence and reputation. And honestly I can't think of a single case in which the top AV rating, signifying the highest competence and reputation, seemed undeserved to me. Whatever screening method Martindale uses has always seemed very reliable -- the AV rated attorneys were indeed the best.
So -- given all of that -- I am VERY EAGER to find out how this situation plays out, because it is so head-scratchingly weird.
posted by jayder at 9:14 PM on January 26, 2014 [1 favorite]
But anyway ... my trust account checks and operating account checks were not labeled to reflect what account they were from. And since my paralegal usually prepared the checks for my signature, on the rare occasions that I prepared the checks, I always had to check with her, "Is the trust account the blue or the pink checks?"
This is a long way of saying, I can understand a scenario in which a check would accidentally be written from the operating account. And I cannot see any attorney discipline resulting from an honest mistake like that. For, if the check was accidentally written from the operating account, but the funds were actually in the trust account, there would be no commingling of funds. And it would be easy for the lawyer to prove that the funds were deposited in the trust account.
However, I find such an honest explanation somewhat implausible in this case, because (1) the check was labeled "Operating Account," and (2) even if a staff member mistakenly picked up the wrong check form, (2) the attorney still had to sign it, and would have seen "OPERATING ACCOUNT" on the check and should have caught the error, and on top of all of that, (3) this is pretty much exclusively a personal injury firm as far as I could tell, so it should not be amateur hour when it comes to disbursing client funds. It's pretty inconceivable to me that they would get that wrong.
But against all that ... the named partner is an AV-rated attorney. And in my decade of law practice, I met a great many sleazy attorneys, and I became familiar with attorneys all along the spectrum of competence and reputation. And honestly I can't think of a single case in which the top AV rating, signifying the highest competence and reputation, seemed undeserved to me. Whatever screening method Martindale uses has always seemed very reliable -- the AV rated attorneys were indeed the best.
So -- given all of that -- I am VERY EAGER to find out how this situation plays out, because it is so head-scratchingly weird.
posted by jayder at 9:14 PM on January 26, 2014 [1 favorite]
Response by poster: Partial update: My partner left a voicemail for the attorney, the partner who is AV-rated as jaydar describes above. In the voicemail he mentioned the issue of the operating account.
The attorney called back and said that he wouldn't be able to figure out what happened until Monday when he can talk to the office. He also said that on Monday he would issue a new check and have it delivered by courier.
My partner expressed frustration that depositing the bad check had resulted in his bank freezing all of his accounts, and the attorney had nothing to say about that, didn't seem to care.
We learned tonight that my partner's bank also hit him with a fee for the returned check - so tomorrow morning he is going to call the attorney and ask him to address that as well.
Any advice on requests we should make, or anything of that nature in that phone call tomorrow would be much appreciated. I suggested to my partner that he should ask for a cashiers check, since the first check was returned NSF. I personally don't think asking for a cashiers check is too much to request considering my partner is going to have to spend part of the day at a bank branch convincing them to not only convince the bank to unfreeze his accounts (he currently has no access to his money) but also then accept a second large check from the same source as the one that was previously returned NSF.
posted by jardinier at 10:03 PM on January 26, 2014
The attorney called back and said that he wouldn't be able to figure out what happened until Monday when he can talk to the office. He also said that on Monday he would issue a new check and have it delivered by courier.
My partner expressed frustration that depositing the bad check had resulted in his bank freezing all of his accounts, and the attorney had nothing to say about that, didn't seem to care.
We learned tonight that my partner's bank also hit him with a fee for the returned check - so tomorrow morning he is going to call the attorney and ask him to address that as well.
Any advice on requests we should make, or anything of that nature in that phone call tomorrow would be much appreciated. I suggested to my partner that he should ask for a cashiers check, since the first check was returned NSF. I personally don't think asking for a cashiers check is too much to request considering my partner is going to have to spend part of the day at a bank branch convincing them to not only convince the bank to unfreeze his accounts (he currently has no access to his money) but also then accept a second large check from the same source as the one that was previously returned NSF.
posted by jardinier at 10:03 PM on January 26, 2014
I don't know ... I'm really leaning toward the "honest and innocent mistake" theory here ... If the partner really does promptly issue your partner a check from the trust account, I think it will be good and the cashiers check will not be necessary... it would be overkill. But I see why your confidence in this attorney is shot and thus why you would ask for the cashiers check.
posted by jayder at 10:44 PM on January 26, 2014 [1 favorite]
posted by jayder at 10:44 PM on January 26, 2014 [1 favorite]
and it won't be the same source ... it will be a different account. I don't think the bank will give your partner any trouble here.
posted by jayder at 10:46 PM on January 26, 2014 [1 favorite]
posted by jayder at 10:46 PM on January 26, 2014 [1 favorite]
Response by poster: Am I understanding correctly that there would be no legitimate reason that a new check would come, again, from the operating account? It seems obvious, but I just wanted to double-check.
posted by jardinier at 10:47 PM on January 26, 2014
posted by jardinier at 10:47 PM on January 26, 2014
Response by poster: Oh, and shouldn't the attorney reimburse him for the bank fees resulting from the NSF check? And if so, I assume that would be a separate check?
posted by jardinier at 10:48 PM on January 26, 2014
posted by jardinier at 10:48 PM on January 26, 2014
Am I understanding correctly that there would be no legitimate reason that a new check would come, again, from the operating account? It seems obvious, but I just wanted to double-check.
From my non-New York (so take with grain of salt) perspective, and also keep in mind that I'm no expert and this is not legal advice ...
I can't think of a legitimate reason.
posted by jayder at 8:24 AM on January 27, 2014 [1 favorite]
From my non-New York (so take with grain of salt) perspective, and also keep in mind that I'm no expert and this is not legal advice ...
I can't think of a legitimate reason.
posted by jayder at 8:24 AM on January 27, 2014 [1 favorite]
Oh, and shouldn't the attorney reimburse him for the bank fees resulting from the NSF check? And if so, I assume that would be a separate check?
That seems fair to me.
posted by jayder at 8:25 AM on January 27, 2014 [1 favorite]
That seems fair to me.
posted by jayder at 8:25 AM on January 27, 2014 [1 favorite]
Response by poster: Update:
The attorney called my partner this morning and said that he would deliver a new check to him by the end of the day. He also agreed to pay for any bank fees.
Interestingly the attorney said he didn't understand why the check was returned NSF, and said that it should have been fine - even though it was from the operating account. Which is rather strange.
However he acknowledged that the new check would be from a trust account.
My partner also asked for a copy of the settlement agreement, which he hasn't seen since he was in the hospital - but they said that would take a few days to get for him. (not sure why)
The check was delivered to my partner in the last hour and he's bringing it to the bank now (his bank is open later than most). Next up, hopefully it will clear, which would be a resolution to that aspect - I'll update again when we know.
posted by jardinier at 2:22 PM on January 27, 2014
The attorney called my partner this morning and said that he would deliver a new check to him by the end of the day. He also agreed to pay for any bank fees.
Interestingly the attorney said he didn't understand why the check was returned NSF, and said that it should have been fine - even though it was from the operating account. Which is rather strange.
However he acknowledged that the new check would be from a trust account.
My partner also asked for a copy of the settlement agreement, which he hasn't seen since he was in the hospital - but they said that would take a few days to get for him. (not sure why)
The check was delivered to my partner in the last hour and he's bringing it to the bank now (his bank is open later than most). Next up, hopefully it will clear, which would be a resolution to that aspect - I'll update again when we know.
posted by jardinier at 2:22 PM on January 27, 2014
Response by poster: Additional Update:
My partner's bank can't do anything with the check yet - they are conducting an investigation into the NSF check from the attorney - so his accounts are still closed (since last week), and they hope to re-open his accounts tomorrow. The check is labeled "special account" and is from a different bank than the first check. We're thinking he will just go to the issuing bank tomorrow and open a new account there with the check in the hopes that they can verify the funds immediately. Otherwise, his bank said that it would be at least another 5 business days before they could verify the funds on this new check.
posted by jardinier at 2:42 PM on January 27, 2014
My partner's bank can't do anything with the check yet - they are conducting an investigation into the NSF check from the attorney - so his accounts are still closed (since last week), and they hope to re-open his accounts tomorrow. The check is labeled "special account" and is from a different bank than the first check. We're thinking he will just go to the issuing bank tomorrow and open a new account there with the check in the hopes that they can verify the funds immediately. Otherwise, his bank said that it would be at least another 5 business days before they could verify the funds on this new check.
posted by jardinier at 2:42 PM on January 27, 2014
Sheesh. Thoughts:
1. I hope the delay on the settlement agreement won't launch a new series of stonewalling and delaying maneuvers
2. Per advice above, IMO you should continue efforts to report this whole thing to the appropriate parties. It still smells fishy.
3. If it was me, I'd deposit in my account and HOPE it bounces again, so you can sue the bejesus out of these guys. You'd have a good claim for the double disruption affecting you in all sorts of punishable ways, and given that the judicial system is run by lawyers, and every bit of this story makes lawyers want to throw up, I think you'd make out quite well, with a tidy bonus (surely in an early settlement).
posted by Quisp Lover at 2:50 PM on January 27, 2014 [1 favorite]
1. I hope the delay on the settlement agreement won't launch a new series of stonewalling and delaying maneuvers
2. Per advice above, IMO you should continue efforts to report this whole thing to the appropriate parties. It still smells fishy.
3. If it was me, I'd deposit in my account and HOPE it bounces again, so you can sue the bejesus out of these guys. You'd have a good claim for the double disruption affecting you in all sorts of punishable ways, and given that the judicial system is run by lawyers, and every bit of this story makes lawyers want to throw up, I think you'd make out quite well, with a tidy bonus (surely in an early settlement).
posted by Quisp Lover at 2:50 PM on January 27, 2014 [1 favorite]
Response by poster: He actually tried to deposit it into his account again - but they advised him not to do so - because they can't promise that his account will be re-opened anytime soon, although they hope they will do it tomorrow.
If the check does clear, more than anything this suggests incompetence to me - just failures to do simple things that should be everyday actions for a firm like this. Or they're in some kind of horrible financial trouble that they're trying to control. I was especially interested in the fact that the attorney (the named parter of the firm) said that the 1st check should have cleared. Which is either a lie, an attempt to not take responsibility, or confusion over how much money his firm has in that account. But even then, that was from the operating account which he didn't seem to care about... which would leave over $16k in the trust that they wouldn't be able to deal with properly, unless of course they already used that for something else which is what caused this.
Hopefully it's just incompetence.
What's amazing to me is that I never would have imagined that someone else's check being returned NSF could cause your own bank account to be frozen. All of his bill payments, cards, everything have been stopped as a result of this attorney's bad check - and that has been a hassle for sure.
posted by jardinier at 2:58 PM on January 27, 2014
If the check does clear, more than anything this suggests incompetence to me - just failures to do simple things that should be everyday actions for a firm like this. Or they're in some kind of horrible financial trouble that they're trying to control. I was especially interested in the fact that the attorney (the named parter of the firm) said that the 1st check should have cleared. Which is either a lie, an attempt to not take responsibility, or confusion over how much money his firm has in that account. But even then, that was from the operating account which he didn't seem to care about... which would leave over $16k in the trust that they wouldn't be able to deal with properly, unless of course they already used that for something else which is what caused this.
Hopefully it's just incompetence.
What's amazing to me is that I never would have imagined that someone else's check being returned NSF could cause your own bank account to be frozen. All of his bill payments, cards, everything have been stopped as a result of this attorney's bad check - and that has been a hassle for sure.
posted by jardinier at 2:58 PM on January 27, 2014
My partner's bank can't do anything with the check yet - they are conducting an investigation into the NSF check from the attorney - so his accounts are still closed (since last week)
Yes, this detail doesn't make sense to me. A large check not clearing ... and your partner's account is frozen? Never heard of that.
posted by jayder at 3:01 PM on January 27, 2014 [1 favorite]
Yes, this detail doesn't make sense to me. A large check not clearing ... and your partner's account is frozen? Never heard of that.
posted by jayder at 3:01 PM on January 27, 2014 [1 favorite]
Response by poster: Yes, he's had several calls from the bank's fraud department and had to go into the branch twice to talk to them. The fraud department is going to call him yet again tomorrow morning to ask more questions.
This is why I suggested just opening a new account at the issuing bank - to both get quicker funds verification, and for the future to have more than one bank account!
posted by jardinier at 3:03 PM on January 27, 2014
This is why I suggested just opening a new account at the issuing bank - to both get quicker funds verification, and for the future to have more than one bank account!
posted by jardinier at 3:03 PM on January 27, 2014
Response by poster: I didn't mention this earlier but, believe it or not, the amount is actually $16,666.67
Not making that up. My partner is calling it the Devil Check. We've been watching a lot of exorcism films on Netflix recently so it's quite fitting.
posted by jardinier at 3:07 PM on January 27, 2014
Not making that up. My partner is calling it the Devil Check. We've been watching a lot of exorcism films on Netflix recently so it's quite fitting.
posted by jardinier at 3:07 PM on January 27, 2014
I wouldn't expect the attorney to act alarmed or nonplussed by it coming out of the operating account. C'mon, the guy is an attorney... He's used to keeping a poker face ... why would he tip his hand to you that he screwed up any more than you already know he did?
posted by jayder at 3:07 PM on January 27, 2014 [2 favorites]
posted by jayder at 3:07 PM on January 27, 2014 [2 favorites]
Another perspective on it all: any egregious outcome your partner suffers (from prolonged investigation by the bank to missed rent/utility payments, etc. ) plus any mental suffering occurred as a result, would surely be recouped in lawsuit, per my previous posting (more specifically, in early settlement to such a suit). Even if this check doesn't bounce. If it DOES bounce, I think a plasma TV is in your future.
You're in a very strong position; it's all documented, it's all disgusting, and no judge or DA would possibly feel sympathy for the other side. And NONE of this is stuff the law firm would EVER want to see made public.
OTOH I'm not a lawyer.
posted by Quisp Lover at 3:08 PM on January 27, 2014 [1 favorite]
You're in a very strong position; it's all documented, it's all disgusting, and no judge or DA would possibly feel sympathy for the other side. And NONE of this is stuff the law firm would EVER want to see made public.
OTOH I'm not a lawyer.
posted by Quisp Lover at 3:08 PM on January 27, 2014 [1 favorite]
Agreed with jayder. I wouldn't believe a word you're being told by this attorney, who is absolutely in careful clean-up mode.
posted by Quisp Lover at 3:09 PM on January 27, 2014 [1 favorite]
posted by Quisp Lover at 3:09 PM on January 27, 2014 [1 favorite]
Response by poster: We're not really the litigious type I suppose. My partner didn't pursue the driver who hit him beyond the insurance company settlement either in part because it doesn't seem like the world is made a better place by ruining someone else's life.
In this case, I'm (amazingly) still assuming some kind of incompetence while speculating about evil-doing. But if this check doesn't clear, well...
While I do think that the firm has acted inappropriately and caused a lot of stress over the last two years of this, a new case would also just be even more stress and nonsense to deal with. Also, how in the world does one know if an attorney will turn out like this? This guy has the top AV rating on martindale.com - so we might be setting ourselves up for the same thing all over again.
Instead of turtles all the way down, it would be attorney after attorney...
posted by jardinier at 3:14 PM on January 27, 2014
In this case, I'm (amazingly) still assuming some kind of incompetence while speculating about evil-doing. But if this check doesn't clear, well...
While I do think that the firm has acted inappropriately and caused a lot of stress over the last two years of this, a new case would also just be even more stress and nonsense to deal with. Also, how in the world does one know if an attorney will turn out like this? This guy has the top AV rating on martindale.com - so we might be setting ourselves up for the same thing all over again.
Instead of turtles all the way down, it would be attorney after attorney...
posted by jardinier at 3:14 PM on January 27, 2014
I totally understand. I'm not litigious either, fwiw. I'd be inclined to do it your way. What I'm mostly doing is giving you a way to "flip" from fear/loathing about further screw-ups. Because at this point, it seems to have unfolded very very one-sidedly in your favor (if that IS the avenue you take). And, again, 1. they'd know how one-sided it is, and 2. they don't want this getting out, so I think you'd have a settlement check within 4 days of launching a suit. It would surely not be a long slog for you.
So if you prefer to avoid litigation, I completely understand. But please don't feel fraught as this plays out. You have all the power now, thanks to their incompetence and/or malfeasance.
posted by Quisp Lover at 3:19 PM on January 27, 2014 [1 favorite]
So if you prefer to avoid litigation, I completely understand. But please don't feel fraught as this plays out. You have all the power now, thanks to their incompetence and/or malfeasance.
posted by Quisp Lover at 3:19 PM on January 27, 2014 [1 favorite]
Response by poster: I took a landlord to court once to get out of a lease because they forced us to allow them to start remodeling the apartment while living there, literally cutting holes in the ceiling above our bedrooms to the open sky above, destroying our property during the construction, etc. It was madness.
Anyway, just the few times we had to go to the courthouse were awful. Standing in line forever to get in, not being allowed to bring food or drinks in and having to wait all day in the courthouse with only vending machines to eat from - endless delays, the sleaziest humans I've ever met working for the landlord (they were like a parody of the jock-lawyer stereotype) - our very eager and kind and hardworking young attorney who was clearly out of his league against them. We got out of the lease, but to get more from it would have required months of going back again and again, and it just wasn't worth it to us. My time was worth more than any money we were going to get from them.
The whole thing taught me that there is almost no chance of justice in the US courts, it's all about how much money or power you have. And these guys we're dealing with now probably have a lot of power (though apparently not very much money, at least in their operating account).
I'd do everything in my power not to step into a courtroom again. But, in the end it would be up to my partner to decide if he wanted to pursue something further from them.
posted by jardinier at 3:28 PM on January 27, 2014
Anyway, just the few times we had to go to the courthouse were awful. Standing in line forever to get in, not being allowed to bring food or drinks in and having to wait all day in the courthouse with only vending machines to eat from - endless delays, the sleaziest humans I've ever met working for the landlord (they were like a parody of the jock-lawyer stereotype) - our very eager and kind and hardworking young attorney who was clearly out of his league against them. We got out of the lease, but to get more from it would have required months of going back again and again, and it just wasn't worth it to us. My time was worth more than any money we were going to get from them.
The whole thing taught me that there is almost no chance of justice in the US courts, it's all about how much money or power you have. And these guys we're dealing with now probably have a lot of power (though apparently not very much money, at least in their operating account).
I'd do everything in my power not to step into a courtroom again. But, in the end it would be up to my partner to decide if he wanted to pursue something further from them.
posted by jardinier at 3:28 PM on January 27, 2014
I share your repugnance. But I don't think you'd ever see the inside of a courtroom on this one. File suit, collect settlement check. If settlement check isn't offered, you could always cancel.
Just an option, fwiw.
posted by Quisp Lover at 3:35 PM on January 27, 2014
Just an option, fwiw.
posted by Quisp Lover at 3:35 PM on January 27, 2014
Response by poster: True, but unfortunately attorneys don't work for free!
posted by jardinier at 3:39 PM on January 27, 2014
posted by jardinier at 3:39 PM on January 27, 2014
It is very, very hard in many cities for a prospective attorney malpractice plaintiff to find an attorney to take the case. Most attorneys do not want to "shit where they eat," so to speak, and the ones who do take attorney malpractice cases are looking for ones like "attorney blows the statute of limitations on a slam-dunk wrongful death lawsuit that would have been worth millions in damages." I would expect it to be virtually impossible to find an attorney to take this case, since the stakes are so low. Where you're only out a bounced check fee and some (understandable) annoyance and alarm ... no, it's pretty much a no-go.
posted by jayder at 5:16 PM on January 27, 2014 [1 favorite]
posted by jayder at 5:16 PM on January 27, 2014 [1 favorite]
"It is very, very hard in many cities for a prospective attorney malpractice plaintiff to find an attorney to take the case."
Not in NYC. Good point about the low stakes, though. But, yet again, it'd be a fast settlement play, not a full-out suit. Easiest five grand ever.
But whatever. Good luck, OP!
posted by Quisp Lover at 10:34 PM on January 27, 2014
Not in NYC. Good point about the low stakes, though. But, yet again, it'd be a fast settlement play, not a full-out suit. Easiest five grand ever.
But whatever. Good luck, OP!
posted by Quisp Lover at 10:34 PM on January 27, 2014
Response by poster: Update:
Hopefully the second to last update on this. My partner took the check to the issuing bank, which is HSBC. He tried to open an account (checking and/or savings) - and they said that if he did that, he would not be allowed to access any of the funds in that account for 30 days. They said "we open relationships, not accounts." Seriously. But in the process, they did verify the funds in the account. So he's taking it to his existing bank now and will talk to them about depositing it, and hopefully that will work.
posted by jardinier at 11:46 AM on January 28, 2014 [2 favorites]
Hopefully the second to last update on this. My partner took the check to the issuing bank, which is HSBC. He tried to open an account (checking and/or savings) - and they said that if he did that, he would not be allowed to access any of the funds in that account for 30 days. They said "we open relationships, not accounts." Seriously. But in the process, they did verify the funds in the account. So he's taking it to his existing bank now and will talk to them about depositing it, and hopefully that will work.
posted by jardinier at 11:46 AM on January 28, 2014 [2 favorites]
It is very, very hard in many cities for a prospective attorney malpractice plaintiff to find an attorney to take the case.
That's not really been my experience. I've actually helped to defend a few legal mal cases, and there are usually at least one or two firms that serve even minor legal markets that prosecute such cases.
It can be hard to find those firms, but this is less because attorneys don't like doing this kind of work and more that it's a very specialized practice area. In that sense, it's akin to other professional malpractice cases like med mal, and engineering mal.* There are a ton of PI firms, big ones even, that won't touch med mal with a ten-foot pole, because it's such an angular practice area. Professional mal cases can require an expert just to prove that the plaintiff suffered a cognizable injury. It's very, very tricky.
Along those lines, the thing to keep in mind here is that it's not actually malpractice if the firm can make it right. Damages are a critical element of every tort, including malpractice. No harm, no foul. If the OP does wind up getting paid, and the firm pays for any NSF and bank fees, there would be exactly $0.00 in damages, i.e., no claim.
*Which is actually a thing, believe it or not, but it's so uncommon that even firms that do a lot of professional mal cases don't see much of it.
posted by valkyryn at 12:41 PM on February 4, 2014 [2 favorites]
That's not really been my experience. I've actually helped to defend a few legal mal cases, and there are usually at least one or two firms that serve even minor legal markets that prosecute such cases.
It can be hard to find those firms, but this is less because attorneys don't like doing this kind of work and more that it's a very specialized practice area. In that sense, it's akin to other professional malpractice cases like med mal, and engineering mal.* There are a ton of PI firms, big ones even, that won't touch med mal with a ten-foot pole, because it's such an angular practice area. Professional mal cases can require an expert just to prove that the plaintiff suffered a cognizable injury. It's very, very tricky.
Along those lines, the thing to keep in mind here is that it's not actually malpractice if the firm can make it right. Damages are a critical element of every tort, including malpractice. No harm, no foul. If the OP does wind up getting paid, and the firm pays for any NSF and bank fees, there would be exactly $0.00 in damages, i.e., no claim.
*Which is actually a thing, believe it or not, but it's so uncommon that even firms that do a lot of professional mal cases don't see much of it.
posted by valkyryn at 12:41 PM on February 4, 2014 [2 favorites]
Response by poster: Thank you everyone for all of your assistance with this!
The new check was deposited, along with a check for the NSF fees, and it appears to have cleared this time.
On the question of damages, I suppose it's true there were no damages in the end - Aside from all of my partners automatic debits failing, and all of his checks being returned unpaid during that period, and the insane amount of stress, and running all over town, and the temporarily closed bank accounts...and so on.
posted by jardinier at 2:33 PM on February 5, 2014
The new check was deposited, along with a check for the NSF fees, and it appears to have cleared this time.
On the question of damages, I suppose it's true there were no damages in the end - Aside from all of my partners automatic debits failing, and all of his checks being returned unpaid during that period, and the insane amount of stress, and running all over town, and the temporarily closed bank accounts...and so on.
posted by jardinier at 2:33 PM on February 5, 2014
all of his checks being returned unpaid during that period
You might be able to get the firm to chip in a little sumpin' sumpin' to cover NSF fees, etc. Those would be cognizable damages. On one hand, they're not going to be enough to be worth suing over. On the other, this is really something the firm would like to put behind it as quickly as possible. If your partner puts together a letter itemizing all of his related bank charges, you might get yourself another check in the mail.
All they can say is no. . .
posted by valkyryn at 4:21 PM on February 5, 2014
You might be able to get the firm to chip in a little sumpin' sumpin' to cover NSF fees, etc. Those would be cognizable damages. On one hand, they're not going to be enough to be worth suing over. On the other, this is really something the firm would like to put behind it as quickly as possible. If your partner puts together a letter itemizing all of his related bank charges, you might get yourself another check in the mail.
All they can say is no. . .
posted by valkyryn at 4:21 PM on February 5, 2014
You did inform the state bar ethics committee, right? It's unfair to other potential clients and to ethical lawyers for this firm to do these sorts of things like it's no big deal. It is a very big deal!
Informing the bar is not the same as taking him to court.
posted by Neekee at 2:00 PM on February 14, 2014 [1 favorite]
Informing the bar is not the same as taking him to court.
posted by Neekee at 2:00 PM on February 14, 2014 [1 favorite]
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