How much competence/sharpness can I reasonably expect from an attorney?
December 21, 2016 11:18 AM Subscribe
I've been through four lawyers (two firms) in the last two years for the same matter. Each time, they keep either making errors or overlooking things and priorities, which I find frustrating. I feel like these things would not happen with an attorney in the place I used to live. Are my expectations around this reasonable?
I grew up and spent most of my life on the East Coast including spending time around and using attorneys. When I did, I feel like they were always pretty sharp and on-the-ball - if they were making errors, they weren't errors that could be easily discovered by a deep read of the legal documents in question, at least. They always seemed like they at least trying to act in my interest rather than theirs.
The lawyers I am dealing with now are all pretty much 'country lawyers', some more so than others, and I'm getting the feeling this is not the case - but the common component aside from them living in a geographic area is me, so I want to check my assumptions.
Issues:
With the first firm: neither of the lawyers who lived in the same ridiculously small town as the opposing party ultimately wanted to do the antagonistic part of the legal issue, though they'd initially expressed to me that they were perfectly fine doing it and had no conflicts of interest. Both of the lawyers also seemed to be calculating their math extremely generously to the opposing party until I called them on it, and even afterwards, seemed to be tailoring both their billing (opposing party was supposed to be paying fees on Legal Matter, somehow when it came time to add up attorneys fees half had been internally billed incorrectly and could not be added) and numbers to be more generous to the opposing party. Their numbers cannot be reproduced by other attorneys, and when I called to raise this matter, one of their paralegals said that the last attorney "may have done the figures in chicken scratch on a piece of paper somewhere" and that's why they don't have a record of them. This is aside from actual Legal Errors, which they also made.
With the second firm, while they don't live in the smaller town that the court is in, they are really familiar with it and the attorneys who practice there. While they were given the contracts involved, they seem to have missed what seems like a super obvious point on calculating interest. I'm the one who found it, and they agreed that that was in fact a thing that could be used - they said they had used "a more straightforward" calculation instead of the one that was most favorable. They haven't exactly done me wrong, but I'm kind of frustrated that I am not a lawyer, and found the issue, while they who are lawyers, did not.
Am I expecting too much/being an ass? I don't know if these lawyers are Just Bad At Math - ie, they don't know what they don't know, don't understand how interest works - or they Aren't Paying Attention or Just Plain Don't Care Much.
I grew up and spent most of my life on the East Coast including spending time around and using attorneys. When I did, I feel like they were always pretty sharp and on-the-ball - if they were making errors, they weren't errors that could be easily discovered by a deep read of the legal documents in question, at least. They always seemed like they at least trying to act in my interest rather than theirs.
The lawyers I am dealing with now are all pretty much 'country lawyers', some more so than others, and I'm getting the feeling this is not the case - but the common component aside from them living in a geographic area is me, so I want to check my assumptions.
Issues:
With the first firm: neither of the lawyers who lived in the same ridiculously small town as the opposing party ultimately wanted to do the antagonistic part of the legal issue, though they'd initially expressed to me that they were perfectly fine doing it and had no conflicts of interest. Both of the lawyers also seemed to be calculating their math extremely generously to the opposing party until I called them on it, and even afterwards, seemed to be tailoring both their billing (opposing party was supposed to be paying fees on Legal Matter, somehow when it came time to add up attorneys fees half had been internally billed incorrectly and could not be added) and numbers to be more generous to the opposing party. Their numbers cannot be reproduced by other attorneys, and when I called to raise this matter, one of their paralegals said that the last attorney "may have done the figures in chicken scratch on a piece of paper somewhere" and that's why they don't have a record of them. This is aside from actual Legal Errors, which they also made.
With the second firm, while they don't live in the smaller town that the court is in, they are really familiar with it and the attorneys who practice there. While they were given the contracts involved, they seem to have missed what seems like a super obvious point on calculating interest. I'm the one who found it, and they agreed that that was in fact a thing that could be used - they said they had used "a more straightforward" calculation instead of the one that was most favorable. They haven't exactly done me wrong, but I'm kind of frustrated that I am not a lawyer, and found the issue, while they who are lawyers, did not.
Am I expecting too much/being an ass? I don't know if these lawyers are Just Bad At Math - ie, they don't know what they don't know, don't understand how interest works - or they Aren't Paying Attention or Just Plain Don't Care Much.
Antagonistic part of the legal issue: this isn't a competency issue; if two lawyers don't want to handle an antagonistic part of a matter, that's their prerogative. Though they should be up front about that at the outset of the relationship. Hopefully you had a fee agreement that spelled out what they would and wouldn't do.
Fee calculations: I can't quite figure out what your issue is here; is it that they were underbilling, and therefore "more generous to the opposing party," since the opposing party was on the hook for the fees? More generally, it sounds like they didn't keep contemporaneous billing records, which could be an issue.
Interest thing: you say that it "seems like a super obvious point on calculating interest." It's hard to evaluate this without knowing how obvious the issue was. It also isn't clear what you were asking them to do, since you talk about giving them "the contracts" and then say that they missed the "most favorable" manner of calculating interest. Most favorable to you? Was their task to draft or revise the contract so it was more favorable to you?
The final thing I'll note is that most jurisdictions draw a line between "competency" and "malpractice." A lawyer has an ethical duty to be competent, but they can commit malpractice without being incompetent. And a client can fire a lawyer in the absence of either incompetency or malpractice.
posted by craven_morhead at 11:56 AM on December 21, 2016
Fee calculations: I can't quite figure out what your issue is here; is it that they were underbilling, and therefore "more generous to the opposing party," since the opposing party was on the hook for the fees? More generally, it sounds like they didn't keep contemporaneous billing records, which could be an issue.
Interest thing: you say that it "seems like a super obvious point on calculating interest." It's hard to evaluate this without knowing how obvious the issue was. It also isn't clear what you were asking them to do, since you talk about giving them "the contracts" and then say that they missed the "most favorable" manner of calculating interest. Most favorable to you? Was their task to draft or revise the contract so it was more favorable to you?
The final thing I'll note is that most jurisdictions draw a line between "competency" and "malpractice." A lawyer has an ethical duty to be competent, but they can commit malpractice without being incompetent. And a client can fire a lawyer in the absence of either incompetency or malpractice.
posted by craven_morhead at 11:56 AM on December 21, 2016
Best answer: In my experience as a lawyer who is good at math, lawyers (and judges) are bad at math as a rule. That being so, you can still decide to fire your lawyer because they're bad at math, just be aware that the next lawyer might not be any better. One filter that might help for the next lawyer is to see if their undergraduate degree was in a STEM field. But if the lawyer is good otherwise then you may be better off keeping them and checking their math.
posted by any portmanteau in a storm at 12:14 PM on December 21, 2016 [9 favorites]
posted by any portmanteau in a storm at 12:14 PM on December 21, 2016 [9 favorites]
Response by poster: On the fee issue: I spoke to First Lawyer about my priority issue, and also about the fact that attorney's fees were supposed to be paid by the other party; he looked at it and agreed. He said: In order to do A issue, you need to do B paperwork. Throughout B paperwork, I was constantly asking questions like "what about this aspect of B will affect A?" When Second Lawyer (same firm) took over, he said "We can't add First Lawyer's fees, all together the fees would be unreasonable". I pointed out that his firm had considered it reasonable to charge me those fees, and that's when he came back after a few days with "We checked the records, and it looks like First Lawyer was only your attorney for B issue. Our internal records don't classify it as A, so you can't charge it." First attorney did not bother mentioning this at any time and I'm kind of suspicious given we were talking about A the whole time.
On the contracts: Existing contracts, which stated expenditures would be added to principal (and thus would accrue interest at a specified rate) They missed that aspect and just initially just added expenditures on at the end. Also they calculated simple interest vs compound interest.
posted by corb at 12:18 PM on December 21, 2016 [1 favorite]
On the contracts: Existing contracts, which stated expenditures would be added to principal (and thus would accrue interest at a specified rate) They missed that aspect and just initially just added expenditures on at the end. Also they calculated simple interest vs compound interest.
posted by corb at 12:18 PM on December 21, 2016 [1 favorite]
Best answer: I am with, any portmanteau in a storm, math is not the strong suit of most lawyers. Unless the contracts involved are fairly standard ones in Second Firm's primary area(s) of practice, I wouldn't be surprised if they made accounting errors, as they are not accountants. I would not, therefore, recommend firing them just for that.
IANYL, TINLA, but something seems hinky about First Firm. Fees and scope of representation are important things for a lawyer and a client to be on the same page about. You are likely lucky to be free of them. Depending on how out of pocket you are because of this and/or how salty you are about their treatment of you, you may want to contact your State's equivalent of a lawyer's professional responsibility board to look into filing a complaint. Malpractice lawsuits against attorneys are tricky to win, but documented complaints are something that any reasonable lawyer will take very seriously.
posted by sparklemotion at 1:07 PM on December 21, 2016 [3 favorites]
IANYL, TINLA, but something seems hinky about First Firm. Fees and scope of representation are important things for a lawyer and a client to be on the same page about. You are likely lucky to be free of them. Depending on how out of pocket you are because of this and/or how salty you are about their treatment of you, you may want to contact your State's equivalent of a lawyer's professional responsibility board to look into filing a complaint. Malpractice lawsuits against attorneys are tricky to win, but documented complaints are something that any reasonable lawyer will take very seriously.
posted by sparklemotion at 1:07 PM on December 21, 2016 [3 favorites]
When Second Lawyer (same firm) took over, he said "We can't add First Lawyer's fees, all together the fees would be unreasonable". I pointed out that his firm had considered it reasonable to charge me those fees,
The reality is that you entered into a contract to pay their fees, and the other side didn't. Costs on an inter partes basis will always be scrutinised and argued about, and you might well not get away with charging the other side fees that your client agreed to pay.
That doesn't mean that they were necessarily right in either what they were billing you, or what they were going to bill the other side, but there are legitimate reasons that the apparent discrepancy could exist.
posted by howfar at 1:08 PM on December 21, 2016 [1 favorite]
The reality is that you entered into a contract to pay their fees, and the other side didn't. Costs on an inter partes basis will always be scrutinised and argued about, and you might well not get away with charging the other side fees that your client agreed to pay.
That doesn't mean that they were necessarily right in either what they were billing you, or what they were going to bill the other side, but there are legitimate reasons that the apparent discrepancy could exist.
posted by howfar at 1:08 PM on December 21, 2016 [1 favorite]
IANYL but I am also a lawyer who is decent at math and thinks it is key that lawyers accurately read the documents they are applying.
It is not unreasonable to expect your lawyers to be sharp, to be careful readers, to advocate for you when that is in your best interest rather than avoiding conflict with colleagues, and to make the effort to perform accurate math calculations.
Personally I'd fire your current representatives if I were you. Shop carefully but soon for their replacements. And be realistic. New lawyers, no matter how sharp, probably cannot fully resolve to your satisfaction the attorneys fee issue, which sounds a bit mucked up by now. Also, there is always a built in transaction cost to hiring new representation, which is that you are going to have to pay for them to come up to speed.
posted by bearwife at 1:08 PM on December 21, 2016 [2 favorites]
It is not unreasonable to expect your lawyers to be sharp, to be careful readers, to advocate for you when that is in your best interest rather than avoiding conflict with colleagues, and to make the effort to perform accurate math calculations.
Personally I'd fire your current representatives if I were you. Shop carefully but soon for their replacements. And be realistic. New lawyers, no matter how sharp, probably cannot fully resolve to your satisfaction the attorneys fee issue, which sounds a bit mucked up by now. Also, there is always a built in transaction cost to hiring new representation, which is that you are going to have to pay for them to come up to speed.
posted by bearwife at 1:08 PM on December 21, 2016 [2 favorites]
Best answer: It's hard to tell from your description how serious these issues are. I don't think it's because anybody is bad at math -- I think that's a red herring because there really aren't any computation issues in what you are describing. On the fee issue, it sounds like someone was obligated to pay your "reasonable attorneys' fees" for some issue and your lawyers were telling you that you couldn't fairly attribute all of your attorneys fees' to the bucket that the other party was required to pay. They might be right - it's hard to tell without more detail. Usually you'd expect your lawyer to be fairly aggressive in your favor on allocation issues like that, but if it was black-and-white that only certain fees were appropriately allocated, then I would understand what they were saying. It possible they would feel they would be misrepresenting their billings in some way if they allocated fees too aggressively.
With regard to the interest computation, many states specify simple interest on pre-judgment interest calculations. Your claim for interest may not fit that description exactly - it sounds like contractual interest rather than statutory interest, from your description -- but I would understand why a lawyer might initially think that the simple interest concept would apply.
I don't think this has anything to do with "country lawyers."
posted by Mid at 1:59 PM on December 21, 2016 [3 favorites]
With regard to the interest computation, many states specify simple interest on pre-judgment interest calculations. Your claim for interest may not fit that description exactly - it sounds like contractual interest rather than statutory interest, from your description -- but I would understand why a lawyer might initially think that the simple interest concept would apply.
I don't think this has anything to do with "country lawyers."
posted by Mid at 1:59 PM on December 21, 2016 [3 favorites]
I am a paralegal, not an attorney, but I have worked on multiple attorneys' fees cases. Regarding the other party having to pay your "reasonable attorneys' fees," this is generally not a matter of one side submitting their complete bills to the other side and having them pay them, no questions asked. When you ask for and get attorneys' fees, there are standards for when and how those fees are paid. So if your fees are supposed to be paid for A, but Lawyer 1's billing includes B and C, and Lawyer 1 hasn't differentiated those, then Lawyer 2 isn't wrong to say "including all these fees will be unreasonable," because that's what the other party is going to say. Attorneys' fees fights can get long and drawn out (ask me how I know! lol jk don't), so billing conservatively and erring on the side of caution is a good hedge against getting embroiled in a big fight about it.
Also this is all very dependent on the specifics of your case, and how your firm bills: do they keep contemporaneous records, do they block bill, are they maintaining separate matters for the issues which are going to be submitted to the other party to pay versus what you are paying, etc. To me it sounds like maybe your attorneys didn't fully/properly explain how and on what your fees will be paid for by the other party. You should ask for a complete breakdown of what is subject to the order or agreement for payment of reasonable attorneys' fees by the other side. Don't be afraid to ask for clarification or detail on what exactly constitutes "reasonable" or why they're not billing certain things to the other party.
posted by yasaman at 2:24 PM on December 21, 2016 [2 favorites]
Also this is all very dependent on the specifics of your case, and how your firm bills: do they keep contemporaneous records, do they block bill, are they maintaining separate matters for the issues which are going to be submitted to the other party to pay versus what you are paying, etc. To me it sounds like maybe your attorneys didn't fully/properly explain how and on what your fees will be paid for by the other party. You should ask for a complete breakdown of what is subject to the order or agreement for payment of reasonable attorneys' fees by the other side. Don't be afraid to ask for clarification or detail on what exactly constitutes "reasonable" or why they're not billing certain things to the other party.
posted by yasaman at 2:24 PM on December 21, 2016 [2 favorites]
Response by poster: Thanks everyone for helping me get a sanity check on this! A point of clarification- the contract actually says "all costs of collection, including all actual attorney's fees" rather than "reasonable attorney's fees". Does that make a difference?
(Fees have been kind of this immense hole where all our money goes for what seems like ever, thus why we're pretty eager to recover them)
posted by corb at 2:43 PM on December 21, 2016
(Fees have been kind of this immense hole where all our money goes for what seems like ever, thus why we're pretty eager to recover them)
posted by corb at 2:43 PM on December 21, 2016
Regarding the other party having to pay your "reasonable attorneys' fees," this is generally not a matter of one side submitting their complete bills to the other side and having them pay them, no questions asked.
Yes, this. No one likes paying the other side's attorneys' fees, and there is a whole constantly changing jurisprudence about what is acceptable in the shelter of which your opponent will generally stoutly contest the fees. It could be a matter of competence, but the idea you seem to be brooding over, that the attorneys deliberately arranged not to make it possible to attribute the fees reasonably to your matter so as to force you, rather than the opposing side, to pay them, frankly verges on the paranoid and makes me wonder about the other items you raise.
You should expect to be more familiar with your own business than any lawyer, and the degree to which that is true generally varies with how much you are paying them. It's definitely not great that they didn't notice the other mechanism for calculating the interest rate, but be aware that if you want your attorneys to be intimately familiar with all the mathy details of your business, you're going to have to open your wallet wide. So you may have to pick your poison here.
posted by praemunire at 2:46 PM on December 21, 2016 [1 favorite]
Yes, this. No one likes paying the other side's attorneys' fees, and there is a whole constantly changing jurisprudence about what is acceptable in the shelter of which your opponent will generally stoutly contest the fees. It could be a matter of competence, but the idea you seem to be brooding over, that the attorneys deliberately arranged not to make it possible to attribute the fees reasonably to your matter so as to force you, rather than the opposing side, to pay them, frankly verges on the paranoid and makes me wonder about the other items you raise.
You should expect to be more familiar with your own business than any lawyer, and the degree to which that is true generally varies with how much you are paying them. It's definitely not great that they didn't notice the other mechanism for calculating the interest rate, but be aware that if you want your attorneys to be intimately familiar with all the mathy details of your business, you're going to have to open your wallet wide. So you may have to pick your poison here.
posted by praemunire at 2:46 PM on December 21, 2016 [1 favorite]
Regarding "all costs of collection," a court may apply a "reasonableness" standard to fees anyway, but it sounds to me like the bigger issue is the allocation concept - they seem to be saying that certain fees were not actually costs of collection but were for something else.
posted by Mid at 2:48 PM on December 21, 2016 [1 favorite]
posted by Mid at 2:48 PM on December 21, 2016 [1 favorite]
Yeah, I mean often fee-shifting provisions are read with "reasonableness" penciled in, since otherwise the firm getting paid could say "for this case our rate is $10,000 per hour" and try and get paid.
posted by craven_morhead at 1:11 PM on December 22, 2016 [1 favorite]
posted by craven_morhead at 1:11 PM on December 22, 2016 [1 favorite]
The stereotype is that big-city lawyers are less-collegial and more-aggressive, because they don't have as much history with opposing counsel and the judge, and might never even appear against/before those people again in their career. On the other hand, a small-town lawyer who will appear against the same guys or before the same judge might be hesitant to be hyper-aggressive.
So the thinking goes, a small-town lawyer might be more wary of the reputational harm from pursuing an overly aggressive argument, or being perceived as taking unfair advantage of a drafting error.
It's hard to say whether that stereotype is what's going on in either of your situations. For the second group of lawyers, it seems equally likely to me that the lawyers might just be bad at math. Lots of lawyers are bad at math.
posted by QuantumMeruit at 2:19 PM on December 22, 2016 [1 favorite]
So the thinking goes, a small-town lawyer might be more wary of the reputational harm from pursuing an overly aggressive argument, or being perceived as taking unfair advantage of a drafting error.
It's hard to say whether that stereotype is what's going on in either of your situations. For the second group of lawyers, it seems equally likely to me that the lawyers might just be bad at math. Lots of lawyers are bad at math.
posted by QuantumMeruit at 2:19 PM on December 22, 2016 [1 favorite]
Response by poster: Update: when talked to and asked for a copy of the calculations for the total sum, old attorney said they would rather give those directly to the new attorney. Is there a valid reason for this? It seems weird to me. Previous attorneys for all other matters have always been happy to send copies of their documentation or work.
posted by corb at 3:23 PM on December 27, 2016
posted by corb at 3:23 PM on December 27, 2016
Yes, they should be willing to provide that to you. I think the general rule is that the client actually owns all of the work product and files and can demand them at any time.
posted by Mid at 7:12 PM on December 30, 2016 [1 favorite]
posted by Mid at 7:12 PM on December 30, 2016 [1 favorite]
Most states follow the ABA Model Rules of Professional Conduct and essentially say that a client's file is the client's, and though the lawyer can charge copying costs, they have to give up the file. See Model Rules 1.4 and 1.16 and their comments, but check your jurisdiction's rules as well. It's probably fair game to say "I don't care what your preference is, gimme."
posted by craven_morhead at 3:05 PM on January 5, 2017 [1 favorite]
posted by craven_morhead at 3:05 PM on January 5, 2017 [1 favorite]
Mod note: Final update from the OP:
So after getting more familiar with the legal world, I now believe I understand what was going on a bit better: figured I'd provide a final update in case anyone else is going through the same thing.posted by Brandon Blatcher (staff) at 4:59 AM on December 1, 2023
In terms of the first set of attorneys: what I forgot to mention was the size of the small town: it was a population of about 1300 people and what I now understand to be a 'firm' of two attorneys - one who was about to retire, and was grooming the other one to take over his practice. I suspect the real issue was that the retiring attorney knew he wouldn't be able to continue the issue, and didn't want to set the attorney taking over with a reputational problem of being the person assisting the 'city people' in 'attacking' the local. Similarly, it's probably why he was very concerned about the perception of hitting her with fees.
In terms of missing legal items: both the first and second set of attorneys, while familiar with general contract law, were pretty unfamiliar with dealing with the specific contract issue, which was somewhat of a niche issue, but didn't want to go on the record saying they were unfamiliar with dealing with the niche issue. It took a lot of research to get familiar with the niche issue and to find and review records relevant to the issue, which I, being one of the parties who would benefit from it, had a lot of time to do. I probably spent hundreds of hours over the course of the issue doing document review and research to get familiar with all of the complexities of this. At the time, I thought this would be much quicker for lawyers; I now realize that it would be a *little* quicker, but not *that* much quicker for them. My sense is that they, having to bill for their time, didn't know if the benefit to the client from spending that much time would be worth the billable hours - particularly as I was expecting them to be able to charge the opposing party for all billable hours, because of the 'actual attorney's fees' language in the contract. And honestly - it probably wouldn't have been, if they thought they wouldn't be able to charge that to the opposing party.
I still think that probably they could have been better about communication - for example, explaining clearly moving forward what sort of things they thought they could bill to the opposing party and why, and what the reasonable likelihood they thought was of collecting on the sums at various points. I also think that the first set of attorneys should have explained clearly how comfortable they were should things come to litigation with taking an aggressive strategy from the onset, to give me a chance to switch attorneys early. But none of these are bar-complaint-worthy offenses.
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posted by juniperesque at 11:26 AM on December 21, 2016 [12 favorites]