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can my attorney bill against an old retainer for a new matter?

Discussion in 'Lawyers, Legal Practice, Ethics & the Bar' started by sherlock apartments, Jan 13, 2021.

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  1. sherlock apartments

    sherlock apartments Law Topic Starter New Member

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    Jurisdiction:
    New York
    I hired an attorney to return a call from the police for me. I paid him $5k on retainer. The retainer specifically discussed the scope of work to be done (speaking to the police for me).

    It is a limited scope retainer, not a general retainer.

    In the midst of that work being done, I was sued by a company. I asked the attorney a few questions about it and he billed me for his "work" in that matter even though he is a criminal attorney, not a civil attorney, and our retainer agreement referred specifically and exclusively to a criminal matter.

    Can a attorney take a retainer that is for work to be done on a criminal matter and bill against this retainer for work done on a separate, non criminal matter?
     
  2. army judge

    army judge Super Moderator

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    You appear to have answered your question because you later allege that the attorney did that of which you now complain.


    I suggest you make an appointment to discuss your concerns surrounding how (and what) the attorney has billed against the retainer.

    It might not be a bad idea to ask for a complete accounting of all billable work to date.

    Lawyers are admitted to practice by the Appellate Division of the New York State Supreme Court and are subject to oversight by that court during the course of their career. To guide and regulate the practice of law, New York has adopted the Rules of Professional Conduct (22 NYCRR part 1200).

    Once you've done your investigation and obtained any documentation to substantiate your allegations and the attorney doesn't agree to your demands, you could then file a complaint with the state agency regulating attorney conduct in NY:

    If you believe a lawyer may have violated the Rules of Professional Conduct, you can write a letter to the appropriate Attorney Grievance Committee or fill out and submit a form available from their websites. The form or letter should be as clear, specific and detailed as possible when explaining your complaint.

    (Manhattan/Bronx)
    Departmental Disciplinary Committee
    Supreme Court, Appellate Division
    First Judicial Department
    61 Broadway, 2nd Floor
    New York, NY 10006
    Phone: (212) 401-0800

    (Brooklyn/Queens/Staten Island)
    Grievance Committee for the 2nd and 11th Judicial Districts
    Renaissance Plaza
    335 Adams Street, Suite 2400
    Brooklyn, NY 11201
    Phone: (718) 923-6300

    (Manhattan/Bronx)
    Departmental Disciplinary Committee
    Supreme Court, Appellate Division
    First Judicial Department
    61 Broadway, 2nd Floor
    New York, NY 10006
    Phone: (212) 401-0800
    (Brooklyn/Queens/Staten Island)
    Grievance Committee for the 2nd and 11th Judicial Districts
    Renaissance Plaza
    335 Adams Street, Suite 2400
    Brooklyn, NY 11201
    Phone: (718) 923-6300

    Complaints About Lawyers & Judges - How To File A Complaint Against A Lawyer in NY
     
  3. adjusterjack

    adjusterjack Super Moderator

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    What difference does it make. He did the work. He got paid. Would you have preferred him to say "Well, Sherlock, before I answer any of your questions I'll need another retainer because this is a separate matter."

    Would you have walked away clueless?

    Was it your intention not to pay him for the additional time that he took answering your questions?

    I don't see where you have anything to complain about.
     
  4. zddoodah

    zddoodah Well-Known Member

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    Well...despite him being "a criminal attorney, not a civil attorney," you asked him questions about the lawsuit. Did you suppose that the attorney's wok in answering the questions you asked would be done for free?

    According to you, this is what happened, so it obviously can happen. Whether it was legally appropriate is a different question, but the question isn't unclear. When you say "take a retainer . . . and bill against this retainer," are you talking about the contract (the retainer agreement) or the $5,000 that you paid? Either way, the answer is that it doesn't matter. The attorney is entitled to be paid for services rendered.
     
  5. sherlock apartments

    sherlock apartments Law Topic Starter New Member

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    No I didn't expect him to do work for free. but he did work I did not hire him or ask him to do.

    Yes I expected that until we had a retainer agreement that he was not billing me against a retainer that was for a totally different matter in an entirely different type of law.

    yes I know it CAN happen but is he legally entitled to bill against a retainer that is limited in scope and specifically excludes billing for matters outside the scope of the retainer?

    Don't I as a customer of an attorney have the right to have a retainer and a discussion about fees and what the plan is? I didn't want this attorney representing me in the civil matter. He even knew as much. $50 billed for the criminal matter and over 8k billed for this other matter which I didn't need him to be involved in. I understand he CAN take the retainer money but is it legal? I do not think it is.
     
  6. sherlock apartments

    sherlock apartments Law Topic Starter New Member

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    Yes I would have preferred him to say "Well, Sherlock, before I answer any of your questions I'll need another retainer because this is a separate matter." because that is what our limited scope retainer agreement dictates.

    He did work I didn't want him to do on a matter that I intended to represent myself in pro se.

    I would have walked away if he brought up a retainer as he was not the right attorney to work on this case.

    It was not my intention to pay him for the time he took to answer my questions. It seemed like he took a few minutes to discuss it and I thought this was a free consultation type of situation. Since we had no retainer agreement for that matter. What is the point in limited scope retainer agreements if the attorney can just do whatever they want and ignore the retainer agreement?
     
  7. sherlock apartments

    sherlock apartments Law Topic Starter New Member

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  8. sherlock apartments

    sherlock apartments Law Topic Starter New Member

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    wanted to add, if his rate was reasonable I wouldn't mind, but he is an extremely expensive attorney whom I hired to do something totally unrelated. It was my intention to deal with this other matter pro se. At the very least I would have hired an attorney who specialized in that field and whose rate was more affordable. I could have gotten someone else to do this for a flat fee of signficantly less.
     
  9. justblue

    justblue Well-Known Member

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    But you asked the attorney questions and he answered them. Did you think he was doing that for free?
     
  10. sherlock apartments

    sherlock apartments Law Topic Starter New Member

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    yes I thought he was doing it pro bono. We had a pro bono relationship as well as a separate fee based client relationship simultaneously on two separate matters. So it was not clear to me and I feel that he took advantage of me.

    From a reading of the rules of engagement he should have provided me with a updated retainer that describes the scope of the work done etc. Had he done that I would have told him I was going to do this pro se. He achieved the same result that I could have achieved by myself. It was not a complicated matter and it was far below his expertise level and in a different type of law than he practices (criminal vs civil) .

    Ive submitted it for fee arbitration. I'm looking to find out what the right thing to do here is. I know he did work but it was work I didnt want him to do if I knew he was going to bill me even a dollar for it. and he took his time to drag out the bill. I could have found another attorney to do it for a flat fee of 1k for example, what he billed 8k for. I had another attorney who would have done it for me on a contingency fee basis. Had I known I was being billed for it I would have called another attorney. My retainer agreement only reflects my intent and desire to hire him for initial representation in a criminal matter. I don't regret hiring him for that. but he really took advantage of me when this other civil matter came up.
     

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