California Family Law Attorney
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April 08, 2010
  What happens to FEES I deposited if I FIRE my ATTORNEY?
Posted By Thurman Arnold

Q. What are the refund policies if I reconcile with my spouse or switch divorce attorneys?

A. Attorneys are required by California State Bar Rule 4-100 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. These monies are supposed to be placed into an attorney-client Trust Account. Unfortunately, may attorneys pocket the money or put it in their general account. This creates a conflict of interest, because if they've spent the money already they are more likely to pad their bills.

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.

Here's a link to the rules and statutes governing the attorney-client family law relationships.

T.W. Arnold

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January 17, 2010
  I have an attorney but what if I want a SECOND OPINION?
Posted By Thurman Arnold. Certified Family Law Specialist

Q. I am represented by an attorney. However, I don't have a lot of faith in him anymore and now trial is scheduled in four months. Am I being paranoid in wanting a second opinion about my divorce case?

Clara - Redding, CA

A. I understand, Clara. Dissolution proceedings generate great anxiety. 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 one can only marginally direct or control cause difficulties in evaluating the quality and value of advice that clients receive.

Please don't hesitate to seek a second or even a third 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 intimate, immediate or lifetime basis. It is not uncommon to become suspicious of one's attorney, or to lose confidence. Indeed, a major tactic which parties use to manipulate each other in high conflict divorces involves promoting distrust of the other's lawyer; a second opinion may become useful in grounding you. Your fears may be well founded, or they may be caused by a lack of understanding (most often a result of poor communication skills on the part of an attorney, or a lack of apparent empathy for your plight). In either case with these warning signs evident and some time left to change horses if that is indeed what you conclude is necessary, failing to investigate this further right now is a recipe for disaster.

Lawyers are not all created equally; some are unquestionably smarter and more poised and articulate than others, and there is a huge variation in the level of skill and commitment that individuals possess or bring to any particular case or specialty topic.

Certified Family Law Specialists are highly likely to understand the legal complexities of modern divorce, and to be familiar and comfortable with current best practices in the mental health sciences as they relate to individual and family dynamics. Most attorneys lack sufficient interest to bother to undertake the fairly grueling training, education, and testing required for certification as a legal specialist. Although certification as a divorce expert does not guarantee the outcome you desire to achieve, it does stack the odds in your favor - hiring a specialist is more likely to pair you with an experienced legal professional who is at the top of the divorce lawyer bio-sphere. If your attorney is not certified, or even if he is and you sense that his advice is not efficient or it is not making sense to you (or others), it is no sin to discreetly step away, take some breaths, and get reliable and independent feedback.

If you are feeling uneasy about the quality of the legal representation you are receiving, don't ignore the signals. Given what is at stake, why not seek a second legal opinion from a qualified attorney? At worse you may find that your anxiety has been dispelled and that the real problem with you and your lawyer involves a lack of communication or a lack of understanding by one or both of you that can be remedied; at best you may avert a developing train crash before your life and finances are thoroughly wrecked.

We don't have crystal balls, but we all possess intuition and common sense. Use yours!

We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!

Thurman W. Arnold III, C.F.L.S.

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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

Q. The court ordered my husband to pay my family law 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. I want to fire her and hire a better attorney. Can this money be used to pay that attorney instead?

Judy, Vista, CA

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 enforce the fee order 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.

However, judges seem reluctant to deprive the former attorney of the fees they already claim to have earned (as opposed to future unearned fees), so this may not be as easy as it sounds. And, if you want to trash your former attorney in order to justify your request it may bite you instead. If your former attorney is respected and has a good reputation, and is well-known to the Court your chances are slim. Your best argument may be your financial circumstances and the public policy that obviously lies behind subsection (c) - ensuring that parties have counsel in family law and dissolution proceedings.

Also, this statute is a bit challenging to interpet. It speaks in terms of enforcing a fee order which sounds like a situation where an attorney has received, say, a $10,000 order but hasn't been collecting it in monthly installments. In your situation, your new attorney might make a written demand of your husband that he cease the installments to the earlier attorney and pay the new attorney instead (assuming your new attorney is willing to make an enemy of the former lawyer). That also would trigger the 10 day rule.

We written extensively about attorney fees in divorce and family law cases!

Author: Thurman W. Arnold

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