Mandatory Fee Arbitration

[mm_la]

Jurisdiction

California

My attorney lead me to believe that I was below my retainer amount during the 2.5 months that he represented me in a contract negotiation. I asked him several times about the bill, and he repeated'y told me he would send me a bill, but he never did. After my negotiations were completed, he sent me the final and only bill that was over 3 times the amount in the retainer and almost 50% of the contract amount I was negotiating.

My request for the bill were verbal, but I do have emails of him saying he would send me a bill and then never sent one.

I believe my attorney violated Business and Professional Code 6148 ("Upon request by the client, the attorney shall provide a bill to the client no later than 10 days following the request....").

Will the emails from my attorney saying he will send me my bill in a few days and then never sending them be enough proof in fee arbitration to prove that he violated 6148? If so, would that be enough to have the retainer amount be considered a reasonable amount for total payment? If not, what would I need to show/prove?

 

[army judge]

Will the emails from my attorney saying he will send me my bill in a few days and then never sending them be enough proof in fee arbitration to prove that he violated 6148?

Any answer that anyone gives you would simply be a GUESS.

If so, would that be enough to have the retainer amount be considered a reasonable amount for total payment?

That is what the arbitrator will decide.

If not, what would I need to show/prove?

You need to prove you that you communicated to the attorney a request for a bill.

Will that alone be enough for you to prevail?

Again, no one but Almighty God can know the answers you're seeking before the event has transpired.

 

[mm_la]

Thanks army judge. Does the fact that my attorney didn't give me any bill for 2.5 months and charged me 3 times the amount of my retainer help prove my case? or are those things typically not considered?

 

[army judge]

Thanks army judge. Does the fact that my attorney didn't give me any bill for 2.5 months and charged me 3 times the amount of my retainer help prove my case? or are those things typically not considered?

That is hard to say definitively, again it will be decided by the trier of the facts.

Review "6148" to see if your retainer met the state guidelines:

Law section

If the facts are PRECISELY as you recite, things MIGHT look rosy red for you.

Read this, as it seems to be on point, insofar as your situation:

Legal Ethics Corner - Billing Statements: An Essential Client Relations Tool


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This stood out to me:
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California Rule of Professional conduct 4-100(b)(3) provides that an attorney has a duty to "[m]aintain complete records of all funds, securities, and other properties of a client coming into the possession of the member or law firm and render appropriate accounts to the client regarding them." Unlike other parts of rule 4-100, this section has been explicitly held by the State Bar Court to apply to a fee paid in advance. (In the Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 752, 754.)
++++++++++++++++++++++++
Fonte held that the parameters of that accounting are found in Business and Professions Code section 6148(b) which requires that "all bills rendered by an attorney to a client shall clearly state the basis thereof. Bills for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method of determination of the attorney's fees and costs, Bills for the cost and expense portion of the bill shall clearly identify the costs and expenses incurred and the amount of the costs and expenses." Strangely, section 6148(c) does not itself impose a duty on an attorney to furnish a billing at any particular time except when requested by the client and then the bill must be furnished within 10 days. While the statute seems to have been written with hourly fee arrangements in mind, there is no exception for alternative feel arrangements such as flat fees. The remedy for failing to comply with such a client demand is that the fee agreement is voidable at the option of the client and the attorney is thereafter only entitled to a reasonable fee. While time spent is not the only factor considered to determine the reasonableness of the fee, it is one of the most important. (See Cazares v. Saenz (1989) 208 Cal.App.3d 279, 287-89; see also State Bar Mandatory Fee Arbitration Advisory 1998-03.) 1
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The duty to account is also part of the more general duty of an attorney to communicate with the client found both in California Rule of Professional Conduct 3-500 and the Business and Professions Code section 6068(m). The number one complaint to the State Bar of California is failure to communicate.
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THIS TOO:
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Do's and dont's for retainer agreements: You can't do it on a handshake | Bad Faith Insurance Lawyers | Attorneys Shernoff Bidart Echeverria LLP

 

[zddoodah]

Will the emails from my attorney saying he will send me my bill in a few days and then never sending them be enough proof in fee arbitration to prove that he violated 6148?

We haven't read them, so we have no way of opining intelligently about their likely evidentiary value.

If so, would that be enough to have the retainer amount be considered a reasonable amount for total payment? If not, what would I need to show/prove?

The attorney's failure to provide a bill in compliance with B&P 6148 has nothing to do with the reasonableness of the attorney's fees.

Does the fact that my attorney didn't give me any bill for 2.5 months and charged me 3 times the amount of my retainer help prove my case?

If your claim is that your attorney overbilled you, the fact that the attorney's fees eventually exceeded your retainer is completely meaningless. I've had cases in which a client paid a $20k retainer and we ended up billing the client $2M in fees. As noted above, the failure to bill you also doesn't have any bearing on the issue. The only thing you've mentioned that might be relevant is that the lawyer's fees were "almost 50% of the contract amount [you were] negotiating," but that's not dispositive by any means.

 

[mm_la]

Thanks!

Legal Ethics Corner - Billing Statements: An Essential Client Relations Tool


======================
This stood out to me:
======================
California Rule of Professional conduct 4-100(b)(3) provides that an attorney has a duty to "[m]aintain complete records of all funds, securities, and other properties of a client coming into the possession of the member or law firm and render appropriate accounts to the client regarding them." Unlike other parts of rule 4-100, this section has been explicitly held by the State Bar Court to apply to a fee paid in advance. (In the Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 752, 754.)
++++++++++++++++++++++++
Fonte held that the parameters of that accounting are found in Business and Professions Code section 6148(b) which requires that "all bills rendered by an attorney to a client shall clearly state the basis thereof. Bills for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method of determination of the attorney's fees and costs, Bills for the cost and expense portion of the bill shall clearly identify the costs and expenses incurred and the amount of the costs and expenses." Strangely, section 6148(c) does not itself impose a duty on an attorney to furnish a billing at any particular time except when requested by the client and then the bill must be furnished within 10 days. While the statute seems to have been written with hourly fee arrangements in mind, there is no exception for alternative feel arrangements such as flat fees. The remedy for failing to comply with such a client demand is that the fee agreement is voidable at the option of the client and the attorney is thereafter only entitled to a reasonable fee. While time spent is not the only factor considered to determine the reasonableness of the fee, it is one of the most important. (See Cazares v. Saenz (1989) 208 Cal.App.3d 279, 287-89; see also State Bar Mandatory Fee Arbitration Advisory 1998-03.) 1
========================
The duty to account is also part of the more general duty of an attorney to communicate with the client found both in California Rule of Professional Conduct 3-500 and the Business and Professions Code section 6068(m). The number one complaint to the State Bar of California is failure to communicate.
"""""""""""""""""""""
''''''''''''''''''''''''''''''''''''''
THIS TOO:
----------------------------
Do's and dont's for retainer agreements: You can't do it on a handshake | Bad Faith Insurance Lawyers | Attorneys Shernoff Bidart Echeverria LLP[/QUOTE]

 

[mm_la]

Thanks, zddoodah.

We haven't read them, so we have no way of opining intelligently about their likely evidentiary value.

His emails said "I'll send you a bill today to figure out how much time you have into this." and "I'll send you a bill in a few days." Both times he never sent me a bill, and he kept verbally implying that he was staying under the retainer amount. Even his statement "...how much time you have into this." was a reference to how much of the retainer was used at that point.

My goal in fee arbitration is to show that my attorney violated 6148 and get his fee agreement dismissed, so I can get his $600/hr reduced to $200/hr. His rate was 3 times the amount of all the other attorney's I considered. I only accepted his rate since he sold me on his strategy that would solve my case in a couple hours of work.

If I can prove a 6148 violation, is it possible to get his rate reduced as part of determining a "reasonable fee"?

 

[zddoodah]

If I can prove a 6148 violation, is it possible to get his rate reduced as part of determining a "reasonable fee"?

B&P 6148 expressly provides that a failure to comply renders a fee agreement voidable at the client's option, but the attorney is still entitled to a "reasonable" fee. You're not going to get a $600 hourly rate reduced to $200, but you might be able to get some reduction in the total fees.

 

[army judge]

If I can prove a 6148 violation, is it possible to get his rate reduced as part of determining a "reasonable fee"?

If you argue it correctly, the state will order something returned to you.

How much?

Can't say, too dumb to know.

 

[mm_la]

Thanks for all the help.