She never offered me neither did I sign any written contingency agreement. She filed my case and she went through pre-trial motions. It has been over 2.5 years since my case was filed and my attorney never sent me any bills and I never paid her any fees. An attorney friend told me that California Business and Professional Code (6147-b) states that I as a plaintiff can void the agreement and the attorney shall be entitled to reasonable fee.
If my attorney looses the case, am I then obligated to pay my attorney hourly fees? And what if she wins the case, will she be paid hourly or will she be paid the one third?
What if she wins my case and gets paid hourly and her hourly fees would be more than the amount I would get from the judgment? Or do I have the choice on what method I pay her?
These are all good questions. First , yes your attorney is doing the work under a contingency basis. This means that if your attorney does not win your case, she does not get paid one cent. if she wins she would be entitled to a third of the recovery. There are times when an attorney starts representation of a client without a contract. It is not wise but it happens when there is an emergency and the attorney has to act immediately. If the attorney had to spend the time writing he agreement, that is time that would be crucial to fight a will or to avoid the statute of limitations or to set aside a default. Most attorneys are under tremendous pressure to deliver high quality service and sometimes not intentionally, do not get around to write the agreement, or sometimes because of the intensity if the trial, yes the trial, as if when someone calls you at midnight and tells you that their case is going south because they do not have an attorney, the you step in to provide a defense, Should the attorney be penalized? Yes. He technically, violated the Professional responsibility Code. However, if the emergency work was necessary, the attorney would be entitled to recover under Quantum Meruit. Or better yet, the attorney acted in good faith and the client knows that he does not have an agreement. It was the attorney's oversight. Should the client keep his mouth shut and wait until he wins big to tell the attorney that they do not have a contract. All these questions are legitimate and I bet that some of us have seen these events happen. My advice is, remind the attorney to issue you a written agreement.
Highly unusual that your attorney did not give you a retainer agreement to sign. An attorney should never commence work on a matter without a written understanding of the terms of representation, the fee, etc. I agree that you should first try to work this out with your attorney.
Your question is a bit confusing, but, it might be that the confusion is on my part. First, if you are on a contingency agreement, you will not be responsible for any hourly rate, win or lose. I believe in most cases, the hourly rate only applies if you terminate his/her representation of you and he asserts an "attorney's charging lien" on your case. So, I would not be worried about the hourly rate at this point.
My other piece of advice would be that you really need to have a conversation with your attorney. Generally, a contingency fee agreement must be in writing. The fact that you have no document, may be the cause of the confusion. The actual written agreement could answer many of your questions.
Best of luck
Meet w/lawyer and request her contingency fee agreement to review. She should have one. You are not liable for hourly fees if she loses, or wins. When no written agreement she is entitled to reasonable value of services provided. Vaue concept that varies with the facts of any particular case. If you are dissatisfied with her work, you can hire another lawyer. Do that asap if you are going to switch. If you are happy with her services, review her agreement and discuss any questions with her. If acceptable, sign it and move on with the case.
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