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Matthew Scott Berkus

Matthew Berkus’s Answers

7,362 total


  • Is this an ethics violation ? To represent someone in open criminal court without a contract ?

    My lawyer is starting to charge me more then the original amount. I thought he agreed to represent me till the end of my case. But now that I asked to see the contract we never Had one

    Matthew’s Answer

    As Christopher points out, the general rule is that hourly and fixed fee agreements for attorney services need not be in writing (only contingency fee agreements must be writing). It is not a good practice for an attorney to not have a written agreement, but such practice is not unethical or illegal.

    However, your situation is why written agreements are encouraged. Without a written agreement, how do you reconcile misunderstandings. Nevertheless, an attorney is entitled to reasonable compensation for services provided. Abasent a written agreement, compensation will be based on time spent multiplied by an hourly rate that is commensurate with the market and attorney's experience.

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  • What can the dealership do if the check returned but I am intending to have the rest of the money in 2 weeks?

    The dealership gave me 28 days to pay a down payment of 5000, but will not have the full amount within 2 more weeks, gave them a post dated check and they ran it through and it returned but not just yet, its still saying negative in my account but...

    Matthew’s Answer

    Your facts and timeline are a too unclear to give a certain answer, but as Ryan points out, if you made a deal, and don't live up to your end of the bargain, then the dealership can take the car back and sue for damages. They don't have to give you more time or otherwise work with you. One saving grace is that since you gave a post-dated check, under most states bad check laws, you can't be prosecuted criminally for passing a bad check (reason being, when you give the check, there is no intent that it is good at the time it is given).

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  • Why wouldn't anything decided in mediation not have to be followed? Please clarify. Thank you.

    About a year after our divorce was finalized several years ago, my ex-husband and I went to mediation to clarify some issues in our decree, mainly those having to do with the exchange of and parenting time of our child. He is now saying that the o...

    Matthew’s Answer

    If the mediation agreement was filed with the court and became a court order / judgment, then it can be enforced. In short, you are right, he is wrong. However, to enforce it, you would have to go back to court on a order to show cause for contempt.

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  • What are my legal options? Can I remove his parental rights since he does not support them? Amend the agreement?

    My ex husband has not been paying the agreed child support for the past four years. He was also supposed to be covering them on his insurance, which he has failed to do as well. When they visit, they do not even have a room with beds; they sleep ...

    Matthew’s Answer

    You may want to contact Child Protective Services (CPS) as a way to truly assess the situation (but that is a double edge sword and will create more chaos and emotional turmoil for you kids than it likely solves). However, you won't be able to terminate parental rights on the facts you stated. What can do is hold him in contempt for non-payment of child support and any other clear violations of the parenting plan. You may be able to modify custody and visitation. However, termination of parental rights is not likely to be an available remedy.

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  • What Can I Do If My Ex Is Using Child Support For Himself And Not Our Daughter?

    What happens if my ex is not using Child Support for our daughter? I pay $600/month, and he refused to pay for the doctor, her clothes are old, etc. Yet, he goes to an expensive gym, on vacations (without our daughter), he always wears new cloth...

    Matthew’s Answer

    I agree with Larry, your proposed actions are not likely to be a fruitful endeavor. As he says, unless contained in the parenting plan, there is no specific requirement for a parent to account for how child support payments are spent. Child support payments do not belong to the child. I really don't see any value in hiring a private investigator, I am not sure that will help anything.

    Typically, paying for out of pocket medical is a separate line item in the parenting plan. I am not sure you have any traction on that issue. And old clothes are still clothes, as long as they are in good, working condition, that is not a problem.

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  • Do I have a legal action I can bring against the school (goal is to not have to pay back the full $70k loan) or another remedy?

    I completed my 1st year of law school at a private institution known for an extremely rigorous "force fail" scale. In general, the "allowed" grades are allocated accordingly & those with a GPA below 2.0 are dropped. Two weeks before grades were re...

    Matthew’s Answer

    Sorry, no case. Kevin's answer hit the nail on the head. There is nothing here that creates a cause of action.

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  • Council did no leg work, and showed no interest in my case. Told me to plea guilty to a crime I did not commit.

    Was sentenced to prison, for charges I did not commit. Ineffective council.

    Matthew’s Answer

    You need to get an attorney ASAP.

    The problem you will have is that plea deals and entering a plea are considered voluntary. If you entered a plea, that is on you, not your attorney. It is exceedingly difficult to unring that bell by blaming your former attorney.

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  • 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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