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standard terms for an automobile personal injury retainer contract

Discussion in 'Auto Accidents, Injuries' started by garyS-NJ, Jan 30, 2021.

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  1. garyS-NJ

    garyS-NJ Law Topic Starter New Member

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    Jurisdiction:
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    Can someone help me find a boiler plate retainer agreement for an automobile personal injury Underinsured claim??? Ideally, I would appreciate some caution as to Do's and Dont's clauses from the client perspective.

    I was hit by a car riding my motorcycle in PA and my lawyer settled the case for the $15K policy limit with a plan to sue my own automobile Insurance company under the Underinsured clause. I discharged my lawyer at the conclusion of this phase because he settled the case without my authorization and then threatened a lien for his "extensive efforts" against the Underinsured case in order to pressure me into signing the $15K policy limit release. I never gave him authorization to settle but rather conceded and signed the release when he filed papers with the court to remove himself.

    That said I have a new lawyer and his retainer contract seems imbalanced. This retainer provides the attorney with authorization to take any and all actions he deems advisable, necessary, and/or convenient including settlement without any indication as to my consent (i guess I'm sensitized because my previous lawyer settled without my consent arguing that he had my verbal consent...). Of course the Retainer includes the Contingency fee but also identifies my approval on all costs plus a $150 administrative fee (I might think it logical to identify a typical costs limit above which my approval is required). The retainer goes on to indicate that if I discharge him for any reason I agree to waive any hourly accounting to determine his fee but rather it dictates his fee at 33% of the pre litigation claim, 40% of litigated claim and 50% of that from a trial or arbitration. Admitted I might not be clear on the intent of this last clause but again, I'm, only looking for fair and standard.

    Thanks all!
     
  2. army judge

    army judge Super Moderator

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    Have you considered dismissing your current attorney before things get too far along?

    Even If someone provided you with 100 templates, that won't help you today.

    If you do retain another attorney, READ the entire retainer BEFORE signing it.

    In fact, take the retainer to an attorney you TRUST and have her/him discuss it with you, even explain it to you.

    It is often too late to correct something once you become ensnared or enmeshed in it.
     
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  3. Redemptionman

    Redemptionman Member

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    Well it looks like you have several issues with this case? I assume the release you signed provided a clause in it that you would hold harmless the Plaintiff in any litigation moving forward since your attorney settled for the policy limits. This gives up your right to subrogation and the ability of your first party insurance company to get their UIM back once they settle. What your attorney should have done is brought your UIM carrier into the case through amended complaint which I am assuming did not happen. In PA you are a NO fault state which means to have to hurdle certain thresholds before you can sue the negligent person who caused your injuries.

    Now you have two very complicated things to overcome at this stage. 1. Your old attorney certainly has a right to ask for fees associated with you UIM settlement and 2. Your new attorney could take the rest in fees as well leaving you with very little to claim as settlement.

    I would definitely try to get a free and clear release from the contract on the first attorney that way he can not claim more fees than he has already been paid from the settlement of 15k. Then you may pursue another attorney for representation. If the statue of limitation is not running out then I would try to work things out with the first attorney and get them to file the UIM claim. However, no one here knows your damages and whether or not you have a valid UIM claim.

    and I just reread your rates, and most take a third of the settlement not those rates you state even if they go to trial. I realize PA being a NO FAULT state probably has different rules. However, I would definitely try to work things out with the first attorney since switching now would more than likely eat up what UIM coverage you have. Unfortunately, when it comes to personal injury contingency representation the attorney can dump you at any time but you can not dump your attorney without a release. That is just the way it is.

    Good Luck with it.
     
    Last edited: Jan 30, 2021
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  4. Tax Counsel

    Tax Counsel Well-Known Member

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    There won't be one to give you. First, what you are likely to find is that few, if any, lawyers have a fee agreement that is specific to underinsured claims. Rather, they are generally going to have a fee agreement that they use for all personal injury/contingent fee work. Second, each law firm comes up with their own fee agreements. While there will often be things in them that are common among many firms, there are also going to differences. I've not read the actual agreement the second lawyer gave you and thus cannot say if there is something really unusual or problematic with it. I can tell you that the standard in the legal profession is that the client sets the strategic, i,e, overall, goals for the representation and the client's consent is needed for major decisions in the representation, like approval of the settlement. On the other hand, the lawyer is the one who decides the various tactical matters, like what motions to file, how various documents are drafted, what discovery to seek, etc. This is also reflected in the Pennsylvania Rules of Professional Conduct that govern how lawyers practice law. Rule 1.2 states:

    1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

    (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

    (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

    (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

    (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

    (e) A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.

    If the fee agreement seems to allow the lawyer to settle the case without your approval, then before you sign it ask the lawyer to amend the agreement to make it clear that your consent is needed for any settlement of the case. Ifyou want to approve costs over a certain amount, ask for that to be included. That's something I put in my fee agreements.
     
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  5. garyS-NJ

    garyS-NJ Law Topic Starter New Member

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    Thanks! I did dismiss my first lawyer and havent retained the replacement yet. My question is regarding the replacement retainer.
     
  6. Redemptionman

    Redemptionman Member

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    What is not clear. Do you have court ordered discharge or a release from the previous attorney to not pursue legal fees out of your UIM? That is the only way I could see pursuing another firm for representation. These contracts are strict but I have never heard of a release consent to your attorney to operate outside your authorization to settle the case on your behalf. Most all the contracts I have seen state the opposite that the Plaintiff's has to agree to settlement.

    Not sure if that violates the rules of civil procedure for your area or attorney behavior? I hope you realize that if you agree to another contract with similar terms to what you just expressed in your OP then you could probably lose something along the lines of 60-70 percent of any potential judgement if the original attorney attaches a lien to any UIM settlement. This is why it is so important to select the best firm up front so you are not left in a situation like this. I would shop this around with a few large scale personal injury firms in your area. They are the ones that typical don't care much about you as an individual but get you the most money FAST. I wish you luck with it and hope for a great outcome for you.

    -- RM
     
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  7. garyS-NJ

    garyS-NJ Law Topic Starter New Member

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    Thanks very much on this most valuable explanation. I can use this to work out a retainer with the second lawyer... and your rules of professional conduct certainly indicate that my first lawyer was very unprofessional in his insistence that we had a agreement to settle for policy limits and also unprofessional in his tactics in coercing me to sign the release (he motioned the court to remove himself and apply a lien for his services but did not identify the dollar amount which put me in a place of having to hire a lawyer to resolve his court case).

     
  8. garyS-NJ

    garyS-NJ Law Topic Starter New Member

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    Thank you also for your in depth response. you folks are very helpful and generous here.
    Yes, my first atty did bring my UIM carrier into the matter and they sent a letter authorizing settlement for policy limit. Initially I didn't see how that preserved my right to persue the UIM claim but the atty assured me that it was exactly that.. And then with my signed release agreeing to hold harmless for the $15K policy limit, my first atty filed a Praecipe for Discontinuance and identified his motion to withdraw as moot. The court responded with a order that he be withdrawn as council but as I review these papers again I dont see any order dismissing the claim itself.

    So I feel confident that my first attorney will not be coming back to get money from the UIM claim. In his motion to withdraw, he asked for a lien on the settlement to pay himself and identified claim to a portion of the UIM settlement. that was his tactic to force me to sign the release and with that release he agreed to drop claim to any of the UIM proceeds.

    I wanted to keep this thread simple and just focus on the Retainer Contract for the second attorney but I do still have two wrinkles in this matter as follows (?? should I start a new "topic" thread or is it best to keep it here as a "case" thread).

    1. I signed the release based on a specific disbursement which included a specific amount of money being paid out of my share to my medical bills. The lawyer immediately transmitted the release and 30 days later just issued me a check to me for a lesser amount because he is paying a higher amount to my medical bills. Its as he he considered my release without any terms.

    2. I reached out to a local NJ lawyer about the UIM claim and he advised that my Automobile UIM insurance in NJ will not cover a UIM claim for a motorcyucle accident. If this is true, with the release signed, it would seem I have no further recourse for compensation (and I have permanent spinal injuries). My first atty had advised with the PA statutes protecting marital property under Tenants in Entirety that there was no means to sue the negligent party personally.
     
  9. Redemptionman

    Redemptionman Member

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    Renters, the people that hit you are renters so ultimately your attorney decided to sue their insurance to quickly get the money out there which is common. Less ground work for them in this case. You have some logistic issues regarding this case since I assume you reside in NJ and the accident happened in PA. Your attorney should have sued the individual that hit you.

    In no fault states you have to prove a threshold of injuries before you can go after the negligent party.This means you have to have medical injuries/ damages over the bodily injury limits of 10--15-25, whatever your state limits are. Now since the first lawyer you had was lazy and out for the quick settlement he leaves you on the hook to sue the tortfeasor personally. If I am you then I still would do this since say your case was worth (for example only) 200k via jury verdict. Then whatever insurance that is out there will pay their limits and the tortfeasor is on the hook for the remainder. You can garnish wages, depending on the factors of the case you could also get punitive damages which could not get discharged and you most definitely get to garnish wages.

    If however all you have is compensatory damages (more than likely) then you may get a judgement for which you may never see a dime on. I am truly sorry for what happened to you as I know the pain you have suffered is unimaginable. Unfortunately, too many in our society have it figured out that the negligent person very rarely has to pay for the damages they cause which is why they roll around in expense vehicles with small state min limits. I wish you the best and think you should call around and find another firm that will take care of you.

    Good Luck with it, -- RM
     
    Last edited: Jan 31, 2021
  10. Tax Counsel

    Tax Counsel Well-Known Member

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    Well, I wouldn't say definitely. If the at fault driver is employed in Pennsylvania then wage garnishment will not be possible. Pennsylvania is one of only 4 states (the others being Texas, North Carolina, and South Carolina) that does not permit wage garnishment for most private obligations/judgments. Under PA's wage garnishment statute, wage garnishment is only permitted for the following obligations:
    • Divorce judgments;
    • Spouse or child support;
    • For board of four weeks or less;
    • Back rent owed to a landlord for a residential lease, with some limitations;
    • Federal, state, and local income taxes;
    • Certain student loan obligations ;and
    • criminal restitution orders.
    See 42 Pa Stat. § 8127(a).

    Thus, under PA law, it is not possible to garnish wages of a person employed in PA for a civil judgment arising out of an auto accident.
     
  11. Redemptionman

    Redemptionman Member

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    Each state is different, that then leaves asset forfeiture which is doubtful they have anything worth of any value to seize.

    It is very unfortunate for the OP they deserve everything they can get based upon the information they posted.
     
  12. zddoodah

    zddoodah Well-Known Member

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    What makes you think the agreement is not "fair and standard"?

    You're presumably able to google as well as anyone else here, but I'd be shocked if any attorney accepted a fee agreement proffered by a client. Just talk with the attorney about the terms you don't like and propose whatever you think is more reasonable.
     
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  13. army judge

    army judge Super Moderator

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    An afterthought on wage attachments:

    Some federal benefits/transfer payments are exempt from wage attachments: Social Security Benefits, Supplemental Security Income Benefits, welfare/social services transfer payments, and Veterans' Benefits.
     
  14. Redemptionman

    Redemptionman Member

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    I believe by fair and standard he is referring to getting the most he can for the injuries he sustained. A 500k case with only 25-20k in insurance settlement funds is sometimes common. You can only get what insurance is out there and the companies always find ways to limit or vastly reduce what you end up with.

    Oh and then of course the defendant/s figure out how to get out of paying for it, and who knows what a jury of 12 people will do these days. If they don't like you then you get vastly reduced settlements anyway. Hence, I believe why people do not care as the duty to drive safely does not matter to them. In their minds you were in the way and didn't show ordinary care for yourself by not being there. What a great way for people to hurt other people and not have to suffer any other consequences in the way they drive thus putting you on the hook for all the medical, lost wages, and property damages.
     
  15. army judge

    army judge Super Moderator

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    The financial aspect is but one of the things that relatives and victims endure.
    We lost one of our sons at the hands of an uninsured, unlicensed, inebriated, person who was NOT in the USA legally.

    That is one of the reasons I try to impress on people within my sphere of influence to make sure they carry enough insurance to protect themselves, their family, and the things they've worked hard to acquire.
     
  16. Redemptionman

    Redemptionman Member

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    I agree with your comments but insurance companies make it hard as they fight their insureds for UIM or litigate the amount unless it is catastrophic as in what you posted. Not to mention the workers comp, healthcare companies, and hospitals who have a right to judgement proceeds unless they waive this right. It can be a mess before anyone can claim proceeds which is why most people can end up bankrupt as the insurance companies have endless time to wait their own insureds out. I am not a fan of most insurance companies and honestly believe they should not be allowed to be publicly traded. They should be barred from investing policy holder funds and should hold those in low risk bonds or savings accounts for payouts. The way insurance companies operate in this country is criminal.
     
  17. Tax Counsel

    Tax Counsel Well-Known Member

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    None of those things would fix the problems about which you complain. But it would likely mean far fewer insurance companies in business, with the resulting reduction in both choice and competition for the insurance consumer.
     
  18. Redemptionman

    Redemptionman Member

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    Actually I believe it would as it would limit the companies ability to place shareholder wealth over that of their insureds.

    Several companies that provide insurance have gone to that model. Granted you might pay a little more for the insurance but if you have an accident, specifically one that is not your fault then you want your insurance company to provide the rights to the coverage for which you paid.
     
    Last edited: Feb 3, 2021
  19. adjusterjack

    adjusterjack Super Moderator

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    Thread closed due to departure from original question.
     

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