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Matthew Scott Berkus

Matthew Berkus’s Answers

7,335 total


  • Is this legal for a lawyer to take fire arms as a retainer?

    Gave a lawyer in the state of Tennessee several fire arms as a retainer is this legal?

    Matthew’s Answer

    What makes you think it might be illegal? It is an interesting question, but let's separate the issues. There is no law that requires a lawyer (or anyone for that matter) to accept only money in exchange for services. He could have accepted a refrigerator, butchered pig, power tools, whatever. The issues that arise when a lawyer accepts non-traditional compensation (or barter) is valuing the attorney's service relative the the items given as payment. The ethical rule is that an attorney fee must be reasonable for the work performed. So, there should be an understanding (in writing) as to either the dollar value of the items given, and or the value of the attorney services to be provided, and a more detailed outline of what the attorney will do for the client (than would otherwise be needed in a retainer agreement). But, to the bare question of whether the attorney can accept barter or non-traditional compensation, the answer is yes.

    The nuance in your situation is that the items given were firearms. If there is a problem here, unfortunately, it is your problem, and not the lawyers. If there is anything illegal about this, it is on your side (as the transferor/seller), not on the buyer (transferee). Here, the answer will turn on TN law and what type of firearms were transferred. As a starting point, this would likely be classified as a "private party sale." So, whatever TN rules govern a private party sale/transfer of firearms would control. A quick Google search seems to indicate that TN does not have any special or enhanced rules for private party sales, or put another way, private party sales are excepted from the rules that govern the retail sale of a firearm (e.g. background checks). If this happened in CO, you would have needed to obtain a background check on the attorney, but TN doesn't appear to have such a requirement. Lastly, so long as the guns in question are not in a special, restricted class, (e.g. Class III), then I don't see a problem.

    The other ethical issues are more esoteric. Is there an expectation that the guns will be returned. For example, is the attorney accepting the guns as payment for services, or simply as security to motivate you to pay (money) as the bills start rolling in? Is the attorney simply holding the guns as security (like a pawn shop). If that is the case, there needs to be something in writing? If the attorney is holding the guns as security, the attorney needs to make sure they are stored and secured.

    On the one hand, accepting non traditional compensation allows for some people to gain access to legal services that may not be able to otherwise. On the other hand, it adds a layer of complexity to a relationship that is usually strained in the first place (an attorney typically helps people when they are in trouble in some way). So, I don't view accepting barter or non-money compensation as a best practice, but it is not unethical nor illegal. If it were me, I would have had you go pawn the guns and pay money my services.

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  • Want to find out if there's any liens judgments or lawsuits on my property

    Own a home in Wayne county MI how do I know. If there's any liens judgments or lawsuits on my property

    Matthew’s Answer

    I would imagine MI is like other states in this regard, valid (or perfected) liens against real property must be recorded at the county recorder's office where the property is located. http://www.waynecounty.com/deeds/index.htm

    I don't know what they call it in Michigan, but we call what you are looking for an O&E report (Ownership and Encumbrance Report).

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  • What recourse does a client have when an attorney terminates their services?

    I am in a bill dispute with my attorney. Long story short, she terminated her representation. Not because I didn't pay her, but because she feels her character has been attacked. I don't recall attacking her character. We've had back and forth...

    Matthew’s Answer

    Is this your question also, http://www.avvo.com/legal-answers/is-an-attorney-required-to-reveal-their-strategy-a-2496402.html.

    Point 1. The attorney client relationship is voluntary on both sides. The attorney has the same right to fire a client has a client has to fire the attorney. It is a 2 way street.
    Point 2. An attorney doesn't need a reason to fire a client. Note, if there is a pending court case, the attorney must seek permission from the court to withdraw as attorney of record for the case.
    Point 3. An attorney is entitled to compensation for the services rendered.
    Point 4. The retainer agreement between the attorney and client will answer most of these issues. That is the contract for services.

    In most, if not all states, a fee dispute is different than an ethics issue. Although the 2 issues may be handled by the same office, the process is different. Fee disputes are typically handled as arbitration. Ethics violation are more like reporting a crime and attorney regulation investigates the allegations.

    By itself, the fact that the attorney is firing you as a client is not a basis for refund. If you dispute specific charges on the bill, that would likely be handled in fee arbitration (or however PA handles that).

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  • Is an attorney required to reveal their strategy and research to their client?

    I have been under investigation for fraud. No charges filed. My attorney claims to have expended an inordinate amount of time analyzing, reviewing, and conferring with people about the investigation. He listed such things on his hourly accoun...

    Matthew’s Answer

    So, far, nothing you describe is a violation of the rules of ethics, so an ethics complaint is premature. I don't see any harm, and the attorney should welcome, a meeting to discuss the recent history and status of the case. Granted, you will be billed for that meeting. Instead of "demanding" disclosures (whatever that is), call the office and request a status meeting with the attorney.

    If you are pre-indictment or charge, there may not be much "produced work product" (memo's, letters, etc), but that doesn't mean the attorney is not spendin time. If the attorney has spent time talking to the DA or whatever, the attorney can bill for that. The attorney can bill for quiet contemplation of a client's matter.

    It sounds like you have bill shock. I understand that you want to make sure you are getting value for your money, but the case is barely past phase I and you are already jumping to contemplating an ethical complaint, I kinda feel sorry for the attorney. If there is already a trust issue, in my experience, it never improves no matter how forthright the attorney is. It will almost certainly be better for both you and the attorney if you find a different attorney, and now that you have some experience and understanding of the legal profession, you and your new attorney can do a better job mapping out expectations. Unless this attorney is acting unethically (which I doubt), the problem here is a mismatch of expectations and given your inherent distrust, it is unlikely the relationship can be repaired.

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  • If I run away, and my parents find me, can they make me come home? I live in Colorado.

    Running away.

    Matthew’s Answer

    Again with this question? Yes, they can.

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  • What are the options?

    My girlfriend is native American and her family owns land in Oklahoma. It is worth 30 million or more I believe. My girlfriends mum has all the paperwork so unfortunately there are not enough details because she isn't talking to the family. She le...

    Matthew’s Answer

    No way to know, here, if there is a "case." What needs to happen is a Phase I investigation. First, you need a real estate attorney in OK to pull all the land documents and interview your girlfriend for background information. Then you might be in a position to know if there is any sort of case. Now, if the land in question is tribal land, that is an entirely different ball game.

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  • Am I allowed to do work in a home by square foot price as long as it is not needing a permit? Example tile floor $25/ ft?

    I am a non licensed contractor in CO.

    Matthew’s Answer

    That is a fairly narrow question, not sure too many attorneys will know off the top of their head. It would be helpful if you posted a link or explained why you think you might not be able to do that. On the surface, I don't see what one thing has to do with the other. Whether you charge by square foot or the hour, that doesn't seem to have any bearing on permitting. But, construction law was a long time ago for me.

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  • What are the requirements and fees to do a chpt. 13 bankruptcy?

    Looking to file a chpt. 13 bankruptcy within the month. Trying to see if my situation would be best for it and to see the pricing required to get started.

    Matthew’s Answer

    The court filing fee is $310. You have to do 2 education type classes, which range about $15 to $40. To have a successful chapter 13, you need to have regular recurring income. Go consult with some attorneys in your area and find out if chapter 13 is right for your situation. At those consultations, the attorney will inform you how much YOUR case will cost in light of your specific circumstances. Chapter 13 bankruptcies are 6 times the work of a chapter 7. So, although some people can manage to file a chapter 7 without an attorney, virtually no pro se debtor has successfully completed a chapter 13 (court records back that up, the success rate for pro se chapter 13's is 1%).

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  • Can I slightly alter a school logo/seal and use it for a personal use?

    I recently graduated from college, and I thought it'd be great if I have a baseball jacket that has my college name and logo on it. So I made a design draft myself and showed it to my colleagues who said they wanted to have one. School bookstore s...

    Matthew’s Answer

    No, slight tweaks to the image are not enough. The author or owner of the trademark has exclusive rights to the mark's use and profit. When it comes to trademarks, the test is whether the public would be confused. Based on your description, you are not designing anything original and the whole point of what you are doing is to profit from the school's logo without paying the school for the right to do it, that will never fly.

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  • What happens if my fee agreement had a clause that said that attorney may withdraw if I don't agree to a cash settlement?

    Attorney wants to withdraw and I want to go to trial and paying a new attorney will cost more because a new one would have to come up to speed on the case and that legal analysis will take lots of time as there are a lot of documents to review in...

    Matthew’s Answer

    Yes, an attorney may withdraw from a case and they don't need a reason. Think about it for a second...slavery was outlawed a long time ago. The attorney client relationship is "voluntary" on both sides. You can fire the attorney any time you want, and the attorney can fire the client at any time they want. Now, if there is a pending court case, the attorney must seek court permission to withdraw (which is given 99.9% of the time. And the attorney must take steps to insure the client's interests are not overly prejudiced and harmed.

    Now, that doesn't mean there won't be negative consequences and that the attorney may be liable for something (depends on the underlying facts). Even without that clause in the fee agreement, if the attorney tells you that "this settlement is the best we can hope to get and trial is too much of a crapshoot," that is the attorney's professional recommendation. If the client decides not to follow the recommendation of the attorney, the attorney doesn't need stick around for that. It is what we call "going against the advice of counsel."

    Assuming the attorney's withdrawal is in good faith (it would be tough to show otherwise), the attorney can withdraw and yes, you will need to hire an attorney and pay more money.

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