Is my lawyer guilty of misconduct?
August 28, 2017 3:04 PM   Subscribe

I have been in the process of a divorce for the past several months. My lawyer only informed me last week that I used up my retainer long ago. She refused to tell me how much I owe, and I think she wants my Ex to foot the bill. Ex and I are handling things amicably, and he has agreed to assist me financially with however much we owe my lawyer. I have read that in cases of misconduct, at least a portion of your retainer/dues may not be assessed. What should the Ex and I really be paying?


State of Nevada

My Ex and I finally decided to go our separate ways and divorce, so I retained a lawyer at the beginning of the year. At this time, I don't make much money, a fact that the lawyer is well aware of (having seen my finances). My Ex makes quite a bit more than I do, but he is paying off his substantial debt right now. Although he is assisting me financially, he is not in a position to send huge loads of cash to anyone until his debts are resolved (by the end of next month).

We are handling everything very amicably. He has not retained counsel, preferring instead to work just with my attorney, in hopes of keeping his own costs low (and so that he can help support me and build up his savings again).

I paid my attorney's retainer in cash at the beginning of the year. Other than filing the divorce, going through our finances, and drafting an agreement, she has been dragging her feet on this case. I have had several issues with her throughout the case, including:

1. Her taking an inordinately long time to respond to my requests for updates (sometimes weeks)
2. Her keeping me waiting for very long time periods when we have appointments (sometimes in excess of 2 hours)
3. Completely forgetting appointments that she herself had requested

The most glaring problem is that she never informed me that my retainer ran out, apparently long ago. She never even told me when it was getting close to running out. She only told me last week that it was used up and then some. When I asked her how much she is owed, she told me, "Don't worry, you can't afford it".

Of course I am worried. I'm concerned that she is attempting to extract a huge sum of cash from my Ex. Although he makes more money than I do, I see no need for her to take advantage of him. He has not been informed as far as to what that amount might be, either.

I am tempted to fire her for this horribly unprofessional behavior. Before I do, I want to understand whether or not she is guilty of any kind of legal misconduct, particularly with regard to her racking up legal bills without telling me. I have read that a lawyer who is guilty of misconduct may not be entitled to the full legal fees that they have charged, and this could end up profoundly affecting the financial outcome with my Ex.

Do her actions constitute misconduct, or am I just barking up the wrong tree? What else should I be aware of in a case like this?
posted by chatelaine to Law & Government (10 answers total) 2 users marked this as a favorite
These are the ethical rules your attorney is bound by. This is the body tasked with enforcing them.

But before getting into any of that, you may want to find out what she meant by "Don't worry, you can't afford it." That sounds like she may not be planning on seeking the excess fees from anyone.
posted by craven_morhead at 3:13 PM on August 28, 2017 [3 favorites]

I am an attorney although I am not licensed in Nevada. In the states where I am licensed, all of these issues would be potential grounds for a misconduct complaint to the state bar association, especially if you've already spoken to her about them and she didn't get her shit together.

Do you have emails or any record of missed appointments/waiting a long time for appointments, and do you have any written record of how long it took to get her response to your inquiries? Get all those together, whatever you have. Letting weeks pass without getting back to your client in some form is not ok. Failing to notify your client when their retainer has been used up and continuing to work and build up a balance of fees is not ok.

Ask your ex for records if he has any regarding times that she took a long time to get back to him, or wouldn't tell him how much something cost in terms of her hours. Also find the letter of engagement she should have sent you when you first became her client.

Contact her by email and ask for an itemized bill of the hours she is charging for and the total balance you owe at this time, as well as the date when the retainer ran out. If she refuses to turn over a comprehensive bill, your email and the fact that she didn't respond to it appropriately = the best evidence of misconduct in your complaint.

"Ex and I are handling things amicably, and he has agreed to assist me financially with however much we owe my lawyer."
Did he agree in writing? Or was it a verbal agreement between you two? Is she aware of his willingness to do this? If so, talk to him about it and see if she has said anything differently to him about the balance of legal fees owed, or anything else. If he's actually her client as well, then he is on the hook for some of the legal fees. If he's not her client and is just voluntarily working with the two of you, the only way she could get him to pay your legal fees is if he was willing to go along with it - but he's not actually liable for them.

Sorry you're going through this. From what I know about legal ethics, the way she handled the retainer issue alone is absolutely not ethical, unless she's just a poor communicator and what she meant to say was, "I don't intend to actually bill you for those hours, considering your overall financial situation at this time; consider it a discount." That's a pretty charitable reading though, imo. Attorneys are usually pretty clear when it comes to making sure they get paid.

Talk to her again and give her a chance to explain herself, clarify, answer your questions, etc. If you get blown off, that's when you might want to get stuff together and think about making a complaint.
posted by zdravo at 3:22 PM on August 28, 2017 [10 favorites]

I think the issues about response time are totally valid, but the part about not letting you know your retainer has run out is pretty standard, sadly. The retainer is just enough money to get them to take your case, but it's expected that you will wind up paying more in the course of the legal assistance.

Usually the agreement you sign will say what the lawyers' hourly rate is. Did that happen? Also the "don't worry, you can't pay it" is probably just an off the cuff thing - you should always be able to request an itemized bill.
posted by corb at 4:06 PM on August 28, 2017 [1 favorite]

She should be sending you a periodic statement with hours and fees and the level of retainer remaining. Check your engagement letter, which may say something about billing.

I agree it is possible she meant that she isn't going to charge more than the retainer - this needs to be clarified. If she hasn't sent you any bills/time records from the outset of the case, it is possible that she hasn't been recording her time and has no idea what you "owe" beyond the retainer. This would be very sloppy, but it is possible.

If she does ask for additional payment, you should ask for time records.
posted by Mid at 4:09 PM on August 28, 2017 [1 favorite] your husband paying your attorney for bills exceeding the retainer? I mean, directly? That's the explicit plan? I know ethical rules vary from state to state, but for your husband to be paying your divorce attorney is such a huge conflict of interest it's hard to see how it can even be waivable.

That said, a retainer is not meant to represent all or even most of what you will pay your attorney over the course of representation. It's really just a deposit meant to protect the attorney in case you run up costs and decide not to pay them. She should be able to give you an itemized bill upon request, but you should have expected to be paying more than the retainer.
posted by praemunire at 5:54 PM on August 28, 2017 [1 favorite]

Just as a data point, my divorce lawyer sends me itemized invoices every two weeks.
posted by We'll all float on okay at 6:28 PM on August 28, 2017

My Ex has never paid anything to my lawyer, not a cent. I have. Not him. Only me. So there is no conflict of interest in that regard.

He has been assisting me with groceries and a few bills, by our own agreement.

I never thought for a moment that the retainer fee would cover the entirety of expenses. That would be nonsensical. I did expect, and rightly so, that my lawyer would keep me informed as to how/when those funds would be used.

I do agree that clarification is a wise course of action at this point. I'll ask her respectfully abut what's going on and if necessary, I'll get my documentation together.
posted by chatelaine at 9:05 PM on August 28, 2017

Not a lawyer but I've been divorced. I just want to get this straight: your husband doesn't have his own lawyer and is using yours to create an agreement--so, is she meeting with both of you or just you and he has nobody representing him? Is there any type of signed agreement that he's paying this bill? Where are you getting the idea she's going to try to extract money from him?

I'm glad you're getting clarification about, "Don't worry; you can't afford it," means.

In any case, you need to get a new lawyer. This one isn't responsive and worse, is confusing. That's the last thing anyone needs.
posted by yes I said yes I will Yes at 4:12 AM on August 29, 2017 [1 favorite]

Not to threadsit, but I do want to address some questions. Yes, we are both using my lawyer, but she is representing me. The lawyer and my Ex have been corresponding via email when necessary. He is not interested in retaining a lawyer (unless mine gets really out of hand in trying to get money from him).

My lawyer has asked for upwards of $1400-/mo. from him in support, which he really cannot afford. I have told her this to no avail. I have no desire to screw him over. I have told her we need to go lower. I don't need to drive a Rolls Royce here. I'd just like to stay on his health insurance and for some small assistance with household expenses. Ex and I, as I stated in my post, are considering drafting our own agreement and seeking out a paralegal to make it official.

Also... my lawyer told me last week that she really does not like the judge who was assigned to our case, because this judge (she did not tell me who) never awards spousal support for any reason, no matter how dire. So we really want to settle this out of court.

FYI, I followed the suggestion to request an itemized bill from the lawyer. I have not yet heard back from her (not surprising).
posted by chatelaine at 10:36 AM on August 29, 2017

My Ex has never paid anything to my lawyer, not a cent. I have. Not him. Only me. So there is no conflict of interest in that regard.

I guess I'm confused, then, as to why you think she's trying to extract money from him. Does she know you're intending for him to cover further costs?

particularly with regard to her racking up legal bills without telling me

This in itself is really not the issue if she is otherwise performing the work according to the retention agreement (a reasonable question to ask at this point, by the way, given failure to make appointments she made, etc.). You hired her to do a job. She is doing it (probably). Unless you explicitly negotiate this, a lawyer is not going to call you to request permission every time she needs to do work on your case. This is money you would owe, regardless.

Her billing practices are still not good, though. I'm not sure if she ever billed you, but it sounds as if she hasn't done so in a while. If that's true, a better potential issue is whether the state imposes any particular billing practices, especially on domestic-relations lawyers--i.e., not that she didn't tell you that she was working on your case, but that she failed to inform you of the amount billed to date for it. NY has a fairly generous rule (or had, I haven't looked in a while) requiring billing in domestic relations matters every 60 days. However, this does not necessarily mean one gets a freebie lawyering windfall if such a bill is not sent. In case of dispute over the fees, the court may allow the lawyer to keep the portion of the retainer that represents fees properly earned. So even under NY's fairly generous rules, the best you could do is hope not to pay bills beyond the retainer. You would need a NV lawyer to advise you on NV ethical standards--you're not necessarily going to find that out just by reading the ethical rules, e.g., the NY billing rule is statutory, not in the ethics code--but I'd be a little surprised if in a state like that you'd do much better. If there is no rule, then the contract is going to govern, and at best you could argue that she breached the contract. Has she violated the terms of your retention agreement? And, if she did, why did you never ask her for (e.g.) the promised monthly bill? Keep in mind that even if you were to win such a case, the court would probably still put a value on the provided services and require you to pay that--that is, they're not going to require the lawyer to have worked for free.

To get the bar to sanction someone for slackeriness generally (a separate possibility) is possible but usually requires some meaningful prejudice, and just because someone gets, e.g., an informal reprimand doesn't necessarily mean you get their services for free.

It sounds like you (reasonably!) find her conduct unprofessional, and so it would be best if you parted ways, after getting an itemized bill and scrutinizing it as seems best. But I have to tell you that in looking for an attorney who will "work with" both parties to a divorce, one of whom is not represented, and possibly informally anticipates getting paid through the party who the attorney is not are looking for a bit of a corner-cutter. People who are competent and have good practices are not likely to want to wade into that mess. You guys need to get separate attorneys and you need to plan to cover your attorneys' fees like other expenses. If for you that happens to come out of a voluntary support payment he's making periodically, fine, but this should be a matter between you two, not something your attorneys are involved in, up to the point they negotiate a settlement that includes fee payments. The last thing you want is for your future ex to claim at some point that he was misled into thinking he was represented by your lawyer. That would be a mess that could take months to clean up.
posted by praemunire at 10:38 AM on August 29, 2017

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