In 2007 I paid an attorney $20,000 to represent me in a criminal matter because I received a call from a law enforcement official who said that I was being investigated for a criminal act. Nothing ever became of it. I recently found out that the threat came from a "law enforcement friend" of someone who wanted to scare me. The attorney only spent an hour or two on my case. I would now like the rest of my money back, but the attorney now claims that the $20,000 was a "flat fee" and that the unused portion is not refundable. I did not sign anything regarding the $20,000 payment (no "retainer agreement" or anything like that), but I do have my cancelled check. Can an attorney charge a flat fee for something like this? What should I do?
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Is unused retainer refundable?
- Thread Starter suev5
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jharris352
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He certainly can do a flat fee, but he needs to do a retainer agreement. Threaten a bar complaint on the issue and he is likely to get a bit more reasonable. Many times though, a retainer is half earned upon payment.
A lawyer's fee shall be reasonably related to the work performed.
That is the ethical rule in most or all of the States in the Union, although the details of "reasonably related" varies. It cannot be waived by agreement, since it is a matter of fitness to practice law, and not merely the practice of commerce. A lawyer who violates this rule can have his or her license pulled, although this does not happen as often as it might.
The facts as you describe it include no written agreement. It is not clear whether he told you that if the matter went away after only a few hours work, he would keep the money. The lawyer may say that he described this to you carefully; you may say he did not. It is entirely possible that you had one idea of the agreement, while the lawyer had another idea. If the lawyer has more knowledge and experience in the field than you do, it may be the lawyer's responsibility to ensure a lack of confusion, which could have been done with written agreement.
In addition, the facts as you describe them are based on a telephoned notification from an unnamed "law enforcement official". At your intake interview with the lawyer, did you give the lawyer any other details to give credibility to the notification, e.g. name and contact information of the law enforcement agency? If all the lawyer did was to phone the hoaxer and confirm that this was, indeed, a hoax, then some would find it that taking $10,000 under the circumstances is merely taking advantage of a hoax.
You have not stated why you gave credence to the hoax call. There may be some facts about your situation that lead you to believe the hoax, that would also give the lawyer reason to believe that he was engaged in an actual, non-hoax case. If so, this may weigh on the lawyer's side as to the reasonableness of his conduct.
The lack of a fee agreement, and likelihood that a ten-thousand-dollar fee for a telephone call confirming a hoax may be considered unreasonable, may be the basis of a complaint to the lawyer licensing agency in your state (typically called a bar association). It will cost you nothing to telephone them as soon as their office opens and ask for help filling out a bar complaint.
It is very common for clients of lawyers to threaten to fill out a bar complaint, especially in the area of criminal defense. As a result, some lawyers routinely ignore such threats. An actually filled-out complaint form, sent to them in writing, may attract more attention, especially if it has not been sent to the bar association yet - so the lawyer still has time to make amends.
If your future communications with this lawyer are not in writing, you may have difficulty using them as evidence in a Bar complaint, a negotiation with the lawyer, or other action.
If you get your cancelled checks back, it may be worth noting whether it was deposited into the lawyer's trust account (or whatever they call it in your state) or whether it went directly into his business account. Some people who play fast-and-loose deposit checks into the wrong account, which may give wise clients negotiating advantage.
That is the ethical rule in most or all of the States in the Union, although the details of "reasonably related" varies. It cannot be waived by agreement, since it is a matter of fitness to practice law, and not merely the practice of commerce. A lawyer who violates this rule can have his or her license pulled, although this does not happen as often as it might.
The facts as you describe it include no written agreement. It is not clear whether he told you that if the matter went away after only a few hours work, he would keep the money. The lawyer may say that he described this to you carefully; you may say he did not. It is entirely possible that you had one idea of the agreement, while the lawyer had another idea. If the lawyer has more knowledge and experience in the field than you do, it may be the lawyer's responsibility to ensure a lack of confusion, which could have been done with written agreement.
In addition, the facts as you describe them are based on a telephoned notification from an unnamed "law enforcement official". At your intake interview with the lawyer, did you give the lawyer any other details to give credibility to the notification, e.g. name and contact information of the law enforcement agency? If all the lawyer did was to phone the hoaxer and confirm that this was, indeed, a hoax, then some would find it that taking $10,000 under the circumstances is merely taking advantage of a hoax.
You have not stated why you gave credence to the hoax call. There may be some facts about your situation that lead you to believe the hoax, that would also give the lawyer reason to believe that he was engaged in an actual, non-hoax case. If so, this may weigh on the lawyer's side as to the reasonableness of his conduct.
The lack of a fee agreement, and likelihood that a ten-thousand-dollar fee for a telephone call confirming a hoax may be considered unreasonable, may be the basis of a complaint to the lawyer licensing agency in your state (typically called a bar association). It will cost you nothing to telephone them as soon as their office opens and ask for help filling out a bar complaint.
It is very common for clients of lawyers to threaten to fill out a bar complaint, especially in the area of criminal defense. As a result, some lawyers routinely ignore such threats. An actually filled-out complaint form, sent to them in writing, may attract more attention, especially if it has not been sent to the bar association yet - so the lawyer still has time to make amends.
If your future communications with this lawyer are not in writing, you may have difficulty using them as evidence in a Bar complaint, a negotiation with the lawyer, or other action.
If you get your cancelled checks back, it may be worth noting whether it was deposited into the lawyer's trust account (or whatever they call it in your state) or whether it went directly into his business account. Some people who play fast-and-loose deposit checks into the wrong account, which may give wise clients negotiating advantage.
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