How to do we get a lawyer to return medical files?
August 5, 2013 8:54 PM Subscribe
If your lawyer refuses or ignores requests to return medical files or personal paperwork that was turned over to them but not used in any legal action . . . what's the next step?
This is not my situation - it's for an older relative & his/her spouse.
Spouse had medical issues after surgery, spent 2 weeks in Intensive Care and had to have other surgeries afterwards and is still not right.
Relative & Spouse paid a couple hundred dollars to have Spouse's medical records copied so a Lawyer could review. After a month or two, First Lawyer referred Relative/Spouse to 2nd Lawyer. The Medical Records were turned over to 2nd Lawyer + retainer fee paid. 2nd Lawyer came back 6 months later and said there was basis for a malpractice case but it would be difficult to prove . . . etc.
Multiple requests (combo of phone and writing) and 4 years later, 2nd Lawyer has ignored every request to return the medical records to Spouse. Calls are not returned, messages are ignored.
What else can be done? Get a 3rd Lawyer to write the 2nd Lawyer? Report 2nd Lawyer to State Bar? Show up at 2nd Lawyer's office when they open and refuse to leave until they return Spouse's property?
(1st lawyer is no help, he retired - hence the referral)
This is not my situation - it's for an older relative & his/her spouse.
Spouse had medical issues after surgery, spent 2 weeks in Intensive Care and had to have other surgeries afterwards and is still not right.
Relative & Spouse paid a couple hundred dollars to have Spouse's medical records copied so a Lawyer could review. After a month or two, First Lawyer referred Relative/Spouse to 2nd Lawyer. The Medical Records were turned over to 2nd Lawyer + retainer fee paid. 2nd Lawyer came back 6 months later and said there was basis for a malpractice case but it would be difficult to prove . . . etc.
Multiple requests (combo of phone and writing) and 4 years later, 2nd Lawyer has ignored every request to return the medical records to Spouse. Calls are not returned, messages are ignored.
What else can be done? Get a 3rd Lawyer to write the 2nd Lawyer? Report 2nd Lawyer to State Bar? Show up at 2nd Lawyer's office when they open and refuse to leave until they return Spouse's property?
(1st lawyer is no help, he retired - hence the referral)
Best answer: 1) A lawyer only has a right to retain client documents if there is an unpaid bill and the lawyer asserts a possessory lien on the file. That is not the fact pattern here
2) Absolutely lawyer must return the records - especially if client and lawyer aren't going to engage in litigation where those records would be necessary.
3) I'd be SHOCKED at a 4 - 6 week delay - FOUR WHOLE YEARS is insanity. I'd make an ethics complaint to the State Bar asap. That may be the fire that is needed.
WOW - sorry this is happening.
IAL
posted by BrooksCooper at 9:10 PM on August 5, 2013
2) Absolutely lawyer must return the records - especially if client and lawyer aren't going to engage in litigation where those records would be necessary.
3) I'd be SHOCKED at a 4 - 6 week delay - FOUR WHOLE YEARS is insanity. I'd make an ethics complaint to the State Bar asap. That may be the fire that is needed.
WOW - sorry this is happening.
IAL
posted by BrooksCooper at 9:10 PM on August 5, 2013
Best answer: You might start by calling his office and asking for his Board of Bar Overseers (or whatever it is called in your state) number. Clients generally ask for this only when preparing to file a complaint. The asking alone might shake things loose. If not, proceed with complaint.
posted by driley at 9:58 PM on August 5, 2013 [1 favorite]
posted by driley at 9:58 PM on August 5, 2013 [1 favorite]
Best answer: I'm sorry this happened. Quite obviously, it shouldn't.
I am not your attorney, nor your relatives'. Your question is very detailed, even laying out some of the facts that brought your relatives to an attorney in the first place; and consequently, I have to be extra clear that I'm not in a position to give you legal advice, I'm probably not even licensed in the relevant jurisdiction, and even if I were, I have no intention of creating an attorney-client relationship with you or your relatives.
However, I can tell you two things generally, not pertaining specifically to your relatives' situation.
First, in my experience there are two types of complaints that most disciplinary authorities take seriously every time they appear: screwing around with clients' money, and going MIA on a client. You can be the most careless, slipshod attorney in the world and probably slide under the radar for awhile so long as you meticulously do not do either of those two things. Doing them won't necessarily get your license suspended, but they are complaints that most disciplinary authorities will absolutely pay attention to. They're not negotiable points.
Second, if a client is being ignored by his/her attorney, and if the client only wants to solve that issue and nothing more, then the client shouldn't need to hire yet another attorney to rectify the situation. There may be other reasons to contact another attorney—and I don't know whether there are or aren't, on the facts you described—but merely getting a phone call returned shouldn't be one. This is (partly) why our licensing authorities hear complaints from clients and the general public, as opposed to existing solely to mediate matters between attorneys. If you contact your state's licensing authority, they can give you a real answer and hopefully direct you to a proper channel to get your relatives' situation resolved.
I'm very sorry your relatives had a poor experience with the legal practice, from their perspective, especially after suffering whatever medical issues they had. I hope they are mostly healthy now, and I wish them luck. Please do encourage your relatives to contact the state bar or licensing authority in their relevant jurisdiction for advice on how to resolve this. We can't give you real, informed advice, but they can.
posted by cribcage at 10:15 PM on August 5, 2013 [2 favorites]
I am not your attorney, nor your relatives'. Your question is very detailed, even laying out some of the facts that brought your relatives to an attorney in the first place; and consequently, I have to be extra clear that I'm not in a position to give you legal advice, I'm probably not even licensed in the relevant jurisdiction, and even if I were, I have no intention of creating an attorney-client relationship with you or your relatives.
However, I can tell you two things generally, not pertaining specifically to your relatives' situation.
First, in my experience there are two types of complaints that most disciplinary authorities take seriously every time they appear: screwing around with clients' money, and going MIA on a client. You can be the most careless, slipshod attorney in the world and probably slide under the radar for awhile so long as you meticulously do not do either of those two things. Doing them won't necessarily get your license suspended, but they are complaints that most disciplinary authorities will absolutely pay attention to. They're not negotiable points.
Second, if a client is being ignored by his/her attorney, and if the client only wants to solve that issue and nothing more, then the client shouldn't need to hire yet another attorney to rectify the situation. There may be other reasons to contact another attorney—and I don't know whether there are or aren't, on the facts you described—but merely getting a phone call returned shouldn't be one. This is (partly) why our licensing authorities hear complaints from clients and the general public, as opposed to existing solely to mediate matters between attorneys. If you contact your state's licensing authority, they can give you a real answer and hopefully direct you to a proper channel to get your relatives' situation resolved.
I'm very sorry your relatives had a poor experience with the legal practice, from their perspective, especially after suffering whatever medical issues they had. I hope they are mostly healthy now, and I wish them luck. Please do encourage your relatives to contact the state bar or licensing authority in their relevant jurisdiction for advice on how to resolve this. We can't give you real, informed advice, but they can.
posted by cribcage at 10:15 PM on August 5, 2013 [2 favorites]
Best answer: Bar complaint is your first step. Whether you take another step (such as suing the lawyer for malpractice) depends on your state and what advice a malpractice lawyer would give you. So you should consult with one.
The reason you complain to the bar is twofold: 1) it will likely put a lot more pressure on the lawyer to return your files and 2) if the complaint trickles through the process and ends up on the lawyer's record, it will give potential clients a warning of what they might expect to encounter with that lawyer.
For what it's worth, in Oregon, I have a duty to give my client 1 complete copy of their file. I would assume (but haven't actually bothered determining) whether that means I need to give them copies or originals of everything they've given me. I haven't bothered to figure out the answer to that question yet because if a client asks if I'll return paperwork they've given to me, I give it to them. Seems pretty obvious.
posted by Happydaz at 10:38 PM on August 5, 2013
The reason you complain to the bar is twofold: 1) it will likely put a lot more pressure on the lawyer to return your files and 2) if the complaint trickles through the process and ends up on the lawyer's record, it will give potential clients a warning of what they might expect to encounter with that lawyer.
For what it's worth, in Oregon, I have a duty to give my client 1 complete copy of their file. I would assume (but haven't actually bothered determining) whether that means I need to give them copies or originals of everything they've given me. I haven't bothered to figure out the answer to that question yet because if a client asks if I'll return paperwork they've given to me, I give it to them. Seems pretty obvious.
posted by Happydaz at 10:38 PM on August 5, 2013
Best answer: My initial thought is that the lawyer is retaining the documents because of an unpaid bill your older relative has omitted from his or her story to you.
A retainer paid up front does not mean that the bill is paid in full. For example, say they paid a $1000 retainer and the lawyer bills at $100 per hour, plus charges costs to the client (postage, copies, etc.). So, the lawyer performs 11 hours of research, makes a few copies and mails some stuff. The retainer is billed and gone, but your older relative owes $100 and change for work actually performed. Yes, (in my jurisdiction) the lawyer can retain client documents until the bill is paid.
If there is absolutely, 100% no outstanding bill, then a complaint to the state bar would be appropriate. However, unless the attorney has (or has had) numerous similar complaints, don't expect a lot of traction here. Instead, get another attorney to just write a very nice letter, return receipt requested, saying something like "Documents in 5 days or complaint for (whatever works)."
IAAL but IANYL and IANY(older relative's)L.
posted by mibo at 4:25 AM on August 6, 2013 [1 favorite]
A retainer paid up front does not mean that the bill is paid in full. For example, say they paid a $1000 retainer and the lawyer bills at $100 per hour, plus charges costs to the client (postage, copies, etc.). So, the lawyer performs 11 hours of research, makes a few copies and mails some stuff. The retainer is billed and gone, but your older relative owes $100 and change for work actually performed. Yes, (in my jurisdiction) the lawyer can retain client documents until the bill is paid.
If there is absolutely, 100% no outstanding bill, then a complaint to the state bar would be appropriate. However, unless the attorney has (or has had) numerous similar complaints, don't expect a lot of traction here. Instead, get another attorney to just write a very nice letter, return receipt requested, saying something like "Documents in 5 days or complaint for (whatever works)."
IAAL but IANYL and IANY(older relative's)L.
posted by mibo at 4:25 AM on August 6, 2013 [1 favorite]
Best answer: Oh, and another thing after preview: who is requesting what? Is your relative requesting the documents for his / her spouse? Because there's no way in hell I'd release medical records to anybody except the client. Are you sure that there's a release allowing the lawyer to communicate with Older Relative about Spouse? This is not an automatic thing in most jurisdictions as far as lawyers' ethics are concerned. If Spouse is not the one initiating contact and has not given the lawyer the appropriate releases, the lawyer may actually be prohibited from discussing or releasing the records.
And most certainly do not personally or suggest to Older Relative to show up at the office demanding records. Frankly, if this happened at my office, I'd just as soon call the cops to get you out of my lobby as talk about it.
posted by mibo at 4:30 AM on August 6, 2013 [1 favorite]
And most certainly do not personally or suggest to Older Relative to show up at the office demanding records. Frankly, if this happened at my office, I'd just as soon call the cops to get you out of my lobby as talk about it.
posted by mibo at 4:30 AM on August 6, 2013 [1 favorite]
Best answer: A lawyer who has been consulted and has declined the case will want to hang on to the file materials in case someone decides to sue him. That is, I'm sure, the motivation.
posted by megatherium at 4:57 AM on August 6, 2013
posted by megatherium at 4:57 AM on August 6, 2013
I'd go to the office in person, and ask for them, and be very polite and very persistent. If no action, then I'd call the Bar Association.
posted by theora55 at 11:18 AM on August 6, 2013
posted by theora55 at 11:18 AM on August 6, 2013
What country are you in? In New Zealand you could have a privacy act request, as you could in any European jurisdiction. If you're in the US, then yeah the Bar is the way to go.
posted by Sebmojo at 3:14 PM on August 6, 2013
posted by Sebmojo at 3:14 PM on August 6, 2013
I am not a lawyer, but I work in the legal field.
In Oregon, there is a department of the State Bar called the Client Assistance Office that handles these types of issues. They work as an intermediary between the client and lawyer. Definitely have your relative call the bar association for their state. They can help.
posted by tacodave at 4:25 PM on August 6, 2013
In Oregon, there is a department of the State Bar called the Client Assistance Office that handles these types of issues. They work as an intermediary between the client and lawyer. Definitely have your relative call the bar association for their state. They can help.
posted by tacodave at 4:25 PM on August 6, 2013
Getting the Bar involved will likely at least get them to respond. However, your relative and the spouse should prepare for certain generic possibilities: commonly, that the records were archived, lost or destroyed. (If moved to some offsite deep storage, and/or digitally archived, there may be some cost associated with retrieval.) There may be language regarding what files the lawyer will or won't retain (and for how long) in the lawyer's original client agreement, or in any correspondence at the end of representation. That doesn't make it OK for the lawyer to stonewall the (former) clients, of course.
posted by snuffleupagus at 11:05 AM on August 8, 2013
posted by snuffleupagus at 11:05 AM on August 8, 2013
This thread is closed to new comments.
If there is, I would probably get advice from another lawyer.
posted by grouse at 8:57 PM on August 5, 2013