I wish to file a formal complaint against an attorney representing me in a personal injury insurance claim. The claim started in 2008 after the accident. Referred to him by a mutual friend. I wasnt paid by him until a month ago from the settlement made 3 years ago with the insurance carrier. I hired a second attorney to assist in finishing up "collecting the money" already offered by the insurance carrier. Im told the check is in the mail now from attorney number 2. I wish to obtain a complete file of attorney number one. What is required? Will I be able to obtain a copy of my retainer agreement also? What is the process in filing the complaint? There are multiple issues. Charging more than agreement. Endless delays, Not filing for workers compensation , not filing lawsuit, and more.
Employment / Labor Attorney
You ask several questions. I will try to hit each one.
The California Rules of Professional Conduct which govern attorney conduct at Rule 3-700(d)(1) provides as follows: "A member whose employment has terminated shall: ... promptly release to the client, at the request of the client, all the client papers and property. 'Client papers and property' includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."
Prepare a written demand for your file and send it or deliver it to the attorney. Set a reasonable deadline for your pick up of the file (like 10 days or so, giving the attorney time to make copies if he wishes to retain a copy). If he refuses to provide your file to you, register a complaint with the State Bar of California. Check out this link for the place to start your complaint. http://www.calbar.ca.gov/Attorneys/LawyerRegulation.aspx
The attorney should have sent you a fully executed copy of your retainer agreement at the outset of the representation. A failure to provide the client with a fully executed copy of the engagement agreement at the outset of the engagement results in some potentially severe consequences for the attorney. Business and Professions Code section 6147(b) provides that "[f]ailure to comply with any provision of this section [including the provision of the fully signed agreement to the client] renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee." The net effect of this provision is that the attorney may be entitled to far less than the percentage fee agreed upon in the agreement if the attorney fails to provide a fully executed copy to the client.
Your right to get your entire file upon request should include the engagement letter, which should be part of your file.
As to the process for filing a complaint, that is more complicated. It is complicated because you have to determine what you are complaining about. There are different processes for different kinds of complaints.
A complaint about conduct in violation of the Rules of Professional Conduct or several aspects of the Business and Professions Code can be addressed directly to the State Bar at the link I provided above. A complaint to the State Bar rarely results in any recovery by the client. Instead, the likely result of a State Bar complaint is an investigation, and if the investigation determines attorney wrongdoing, then attorney discipline such as suspension from the practice of law, reproval or even disbarment.
If your complaint is that you do not think the attorney did not earn his pay, i.e. he did not do what was promised in the contract or he overbilled for fees or costs, then your complaint must be either a lawsuit or a mandatory fee arbitration where you will fight about the attorney's contractual right to receive or retain money.
If your complaint is that the attorney's conduct fell below the standard of care for attorneys in his community which caused you damages, then your remedy is a malpractice lawsuit. You need to find an attorney who engages in legal malpractice litigation and bring a lawsuit seeking damages caused by the malpractice.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
4 lawyers agree
Personal Injury Lawyer
I believe Mr. Pedersen covered everything in your question and I agree with it all. Great answer!
I am licensed in California only and my answers on Avvo assume California law. The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.
1 lawyer agrees
Personal Injury Lawyer
I believe that the issues you have arise from lack of communication between you and your former attorney. To make sense out of this you have to figure out the following:
1.Did you have a written contingency fee agreement with the prior attorney?
2.Did you receive a copy of the agreement after execution?
3.What is the cause for delay in obtaining your funds?
4.Was there any liens,media-cal.medi-care issues or interpleader on any type of disputes?
5.Did the attorney not file a workers comp.claim due to tactical reasons?
For example if you did have a workers comp claim and a third party injury claim,workers comp. will assert a lien and move to subrogate into your injury recovery. So the option may be not to pursue the workers comp.claim
6.Was the case litigated?
You also indicated that a second lawyer assisted you to collect your settlement.Have you discussed the matter with the second lawyer?
Before embarking into more serious ventures you should obtain a copy of your file that you are rightfully entitled and then discuss the matter with the second lawyer or someone else as to any damage that you think you may have sustained. If your recovery is inadequate it may not be a ground against the lawyer unless he did not actively pursue all your damages claim and sold you short. Malpractice cases based on undervalued settlements are difficult based on prevailing case law.
You have a right to information and breakdown of communication always leads to this type of a situation. Wish you good luck.