The following are proven steps that I have used when dealing with my bad lawyer. I recommend that you prepare if you are seeking a refund or considering a grievance with your State Bar.
- Look for Professional Misconduct
See my website’s Helpful Resources section, wherein, I provide links to your state’s Rules of Professional Conduct. These rules will help you understand when your bad lawyer committed negligence. You do not need to overanalyze the application of the rules since ultimately, this will be the job of your local or State Bar.
The following are some of the more common attorney mistakes or violations of state Rules of Professional Conduct to consider from my experience:
- Negligence – failing to do what attorneys in that field should or would have done (e.g., failing to file documents or attend hearings and causing unnecessary delays).
- Communications – failing to provide you with your case’s status; failing to return telephone calls, texts, or emails.
- Dishonesty – telling you untruths or falsehoods about your case; false claims regarding not attending hearings; blaming opposing counsel; telling you lies about mailed billing statements, and providing your Judge misinformation.
- Conflicts of Interest – a broad topic including matters involving loyalty owed to you as a client; discussing your case with third parties not associated with your case; putting the attorney’s self-interests over your interests.
- Safeguarding Property – has to do with your bad lawyer keeping your retainer in a separate trust or escrow account. Although it might be difficult to know, a regular detailed billing statement should show hours billed to this different account.
2) Make Preliminary Calls
See my website’s Helpful Resources section to find contact information for your state and make the following calls on your bad lawyer:
- State Bar – A conversation with your State Bar’s respective client-attorney assistance program (“CAAP”) or Grievance Hotline, if any, can help you determine if a valid issue exists before you invest your time. If you are having communication problems with your attorney, then CAAP can also intervene. Should you move forward filing a grievance, I suggest that you, at least, attempt this step, if for no other reason than to have “checked the box.” However, understand that most CAAP programs are not involved with helping with attorney refunds, should they intervene. They can direct you to the resources that can help, but this is not their jurisdiction or within their authority; therefore, be cautious of the information they provide regarding this part of the grievance process. Attorneys do not staff them, and I was given incorrect information on several different occasions.
- Attorney Background Check – When speaking to your State Bar representative, ask if your attorney has a grievance record. It is always good to know if you are dealing with a bad lawyer who is a repeat offender, which is sometimes difficult to ascertain, especially if your attorney has received a private reprimand. Private reprimands are the lowest form of attorney discipline and are not made known to the public. If anything is found on your attorney’s record, then this could help, should you proceed to file a grievance with your State Bar.
- Disciplinary Agency – I highly recommended that you make advanced calls to your state’s nearest Lawyer Disciplinary Agency Office, which is also provided in my website’s Helpful Resources section. The Lawyer Disciplinary Agency Office is the division of your State Bar that governs the grievance process and can help you understand your attorney’s misconduct and the actual grievance process.
3) Look for Billing Issues
This step is crucial as it relates to a legal fee refund, so please pay close attention.
- Interrogate Your Billing Statement – This is perhaps your best source for calculating unearned fees. Go line by line through your billing statements and apply common sense.
- Services Not Performed – If no detailed billing statement was provided by your bad lawyer, then build your refund justification upon the scope of work you hired your attorney to ensure. If the scope of employment is not entirely spelled out in your contract, then provide any documentation you can, wherein it was communicated.
4) Conduct Online Research
The following steps were beneficial for me in nailing one bad lawyer:
- Social Media & Attorney Directories – Check Avvo or any other social media sites to see if your attorney’s former clients have posted any negative comments. If names are provided, then try to contact them and compare notes. This step was “gold” when I found many other complaints that almost mirrored my experience with one of my attorneys. Granted, they were anonymous, but they were helpful.
- Google Searches – Do a fair amount of Google searches for keyword phrases, such as attorney grievances, attorney misconduct, attorney malpractice, bad lawyer, etc. You will likely arrive at attorney websites, state or local bar associations, or legal blogs. I found some excellent information that helped me understand the seriousness of various negligent mistakes and where to put my emphasis. There are some useful websites written by attorneys, and they share advice on how to avoid complaints from their clients. I found some excellent information that documents the most common complaints and even breaks it down into the areas of law, size of law firms committing violations, etc
5) Review Your Contract
Your local or State Bar might not be much concerned with breaches of contract; however, they could help with your other options. Should you decide to confront your bad lawyer directly and negotiate a settlement, the fear of a civil lawsuit could become just as much of a “stick” as filing a grievance. When doing your research, “turn over every rock” and examine your contract for specific information such as:
- Studying the timing of when detailed billing statements are to be provided and if your attorney did so provide.
- Examining bill rates/roles defined in your contract to assure that they are aligned with the tasks in your detailed billing statements. For example, make sure your attorney is not performing jobs that could be assigned to an administrative assistant or paralegal, thus driving up your Average Bill Rate (ABR) and burning through your retainer.
- Examining language regarding how your retainer is managed. Specifically, does it mention that your retainer will be deposited in an Interest on Lawyer Trust Accounts (“IOLTA”)? IOLTAs are separate from your attorney’s personal or operating checking accounts. If you feel this is questionable, then IOLTA verification can be obtained through your State Bar investigator.
6) Review Your File
Hopefully, you were able to obtain your case file; however, if your attorney did not release it, then this misconduct should be at the top of your bad lawyer list. If you do have your file to review, then I highly recommend that you comb through your correspondence and look for support of the negligence already identified or other inconsistencies.
7) Review Court Records
Most court proceedings are public record and should be available through your county’s Clerk of Court records. You can either visit your county courthouse to view the files or see if you can obtain access to the internet. Either way, I highly recommend that you review all court filings that your attorney submitted in your case. The Clerk of Court can assist you if you if you need help, but remember, they are not attorneys and cannot give you legal advice. Accessing this information allowed me to piece together my timeline, and I found a couple of “smoking guns” that made a difference in both of my bad lawyer cases.
8) Talk to Former Employees
Seek out disgruntled former employees who might have an ax to grind. Try locating them on LinkedIn or Facebook and ask if they are willing to talk. Since one of my attorneys had an incredibly high turnover rate, I kept track of all the paralegals to reference in my grievance petition for the State Bar. Fortunately, I found one who had left and was open to talking. She was quite helpful in confirming a couple of my beliefs about one bad lawyer, and even though I could not quote her directly, I was able to tip off the Chief Disciplinary Counsel (“CDC”) investigator to take her statement.
Since what you can prove is paramount, this is a critical step. Up to this point, be a meticulous record keeper, because it will be helpful. I provide sample illustrations in my eBook listed below.
10) Don’t Go It Alone
These previous nine steps are just the beginning if you are dealing with a bad lawyer, and you should know that the odds are against you. I highly recommend that you buy Dispute It – A Layman’s Guide on How to Get an Attorney Refund & File a Bar Grievance, to significantly improve your chances. I offer detailed instructions on how to prepare your grievance and the other options you have to choose from if you are seeking a refund.
Kenneth R. Gilley is the President of Kenneth R. Gilley & Co., LLC, a small digital marketing company. He is the author of the e-book, Dispute It – A Layman’s Guide on How to Get an Attorney Refund & File a Bar Grievance, and regularly contributes to his blog, My.LegalLessons.com. Ken holds a B.S. in Marketing from McNeese State University in Lake Charles, LA, and lives in The Woodlands, TX.