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| April 08, 2010 |
| What happens to FEES I deposited if I FIRE my ATTORNEY? |
| Posted By Thurman Arnold |
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Q. What are the refund policies if I reconcile with my spouse or switch attorneys?
A. Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention.
Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees. They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money. They are required to give a full statement and explanation of your fees and charges upon request. Refusal to do within 10 days or less may be a cause for State Bar Discipline. |
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| January 17, 2010 |
| I have an attorney but what if I want a SECOND OPINION? |
| Posted By Thurman Arnold |
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Q. I have an attorney. But what if I want a second opinion about my divorce case?
A. Dissolution proceedings generate great anxiety for clients. The circumstances surrounding the breakup of relationships, division of property and debts, sharing of custody, fears about future economics, and being a stranger to a process that clients feel they cannot direct or control quite reasonably tends to cause clients difficulty in evaluating the quality of advice they are receiving. You should not hesitate to seek a second opinion about your family law matter.
We all ought to have a healthy skepticism about what professionals tell us, particularly when the subject affects us in an immediate way on a daily and lifetime basis. It is not uncommon to even become suspicious of one's attorney, or to lose confidence in them. Indeed, a major tactic which parties use to manipulate each other in high conflict divorces involves promoting distrust of the other's lawyer.
And, lawyers may make mistakes like anyone else. Sometimes they lack sensitivity or forget what the client's experience is. Others feel that outright aggression and gamesmanship is what the client really wants. Some lawyers view their role as akin to hired gunslingers. This generates huge fees, and often alienates judges, evaluators, and others important to the outcome of your case. The law does not require that attorneys follow a client's specific direction and tactics (particularly where it is unethical, illegal, or unconscionable). But a problem arises when the attorney and the client do not share or communicate the same goals.
If you have concerns about the quality or legal ethics of representation you are receiving, you may be right. In such cases it is essential that you seek a second legal opinion from a qualified attorney. Too many people rely on the opinions of friends or family, who usually know very little or are allied with a particular point of view about you or your partner that may ignore important considerations.
If you find you have a problem with your present attorney, it is imperative that you not wait until the last moment. If your case is coming to trial or hearing, your legal rights could be negatively impacted by delay. Chances are, since you are reading this, that you need to take some action at once.
We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam! |
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| September 18, 2009 |
| Idaho Trial Court Rules that Mother Cannot Move to Michigan, Even Without the Kids! |
| Posted By Thurman Arnold |
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By Thurman Arnold: I just have to blog this news from Idaho to reinforce why clients are so often better off resolving their disputes then asking judges - who mean well - to decide for them.
In Allbright v. Allbright the parties divorced and entered into a stipulation requiring 60 days notice before either moved out of Bannock County, Idaho, if it rendered the parenting plan impractical. Mother remarried, and 2 years later her new husband lost his employment. He was only able to find employment in Michigan. Mother gave notice of her intent to move to Michigan. At that time she had custody of the parties' minor daughter 54% of the time. Father responded with a motion to give him custody. The parties sought recommendations from a psychologist, who conducted a custody evaluation and recommended daughter be allowed to move to Michigan with mother. He recommended a custody manager because of the "considerable hostility" between the parents. Father wasn't happy and convinced the trial court to appoint a second custody evaluator, who recommended that Father retain custody if Mother moved.
The case was tried in the summer of 2008. At the conclusion of the case, the court asked the parties' attorneys to brief whether it had the power to order Mother not to move at all, whether with or without the daughter.
Father urged that that child's best interests were (and would always be) best served if the parents remained in the same vicinity so that joint parenting could be shared. His lawyer argued that the child's best interests trumped every other consideration or right, such that a trial court could even, for example, order divorced and warring parents to live next door to each other or in the same house if it determined that was in the child's best interests!
The trial court evidently agreed, and ordered that Mom must not move out of Idaho whether with or without the daughter. Mother was hence enjoined to become a prisoner within that state, while her new husband continued his life in Michigan.
Thankfully, the Idaho Supreme Court disagreed with the trial court, but only after Mom probably spent thousands in legal fees defending her right to move. The high Court ruled: "A court presiding over a child custody matter does not become a family czar with unlimited authority to order the parents to do anything that the court believes is in the best interests of the child."
Yet, upon Mother's request to be reimbursed for her legal expenses, the Idaho Supreme Court was unsympathetic declaring that "[b]ecause we have never before addressed the issue of whether a court has the authority to prevent a parent from relocating, we do not find that Father defended this appeal frivolously, unreasonably, or without foundation."
Thurman's comment: It is always a dangerous matter to fail to resolve matters collaboratively.
Here is a link to the Idaho Supreme Court's decision in Allbright v. Allbright.
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| August 18, 2009 |
| I want to hire a NEW ATTORNEY with money my husband was ordered to pay my last lawyer. |
| Posted By Thurman Arnold |
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Q. The court ordered my husband to pay my present attorney $10,000 for legal fees at $500/month. He has made 2 or 3 payments. The court order says the fees are to be paid directly to her. She filed a motion to withdraw, and fired me.
Now I need a new attorney. Can this money be used to pay them instead? Her bills say I owe her $11,000?
Julia. Rancho Cucamonga
Family Code section 272 provides, in dealing with court orders that one party pay the other money on account of their legal fees, "(c) If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the [prior]attorney may enforce the order only if it appears of record that the attorney has given to the former or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10 day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion."
So, in order for your former attorney to be entitled to continue to receive payment she has to have given you notice which is unlikely since few attorneys know about this rule. Effectively, you probably need to demand she give the notice, and then file or have a motion filed within the 10 days to tell the court you cannot continue your case if those fees are not used for your new attorney! |
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