QuestionInvolved in a auto accident, I did not walk for over 9 months, medical bills almost $50,000.00. Original lawyer I let go , he wanted to settle for max policy limit of $100,000.00 & new lawyer said he would work harder but he too is settling for max policy limits... Neither lawyer did anything more than I could have done representing myself... Can i fire both & represent myself? Basically it is a "slam dunk" claim. Do i have to pay them one third? & the hospital bills, can we come to lower amount due to them , do i have to pay them in full? Pleas elet me know ASAP I have appt with my layer tomorrow morning.. Thanks, Trish
AnswerHi Trish,
I am afraid that you waited too late because it is already noon and Dr. Settlement just now is opening your question. But I will go ahead and give you a full answer so that once you get home from the attorney’s office you will have a better idea of what to do next.
I think that you SHOULD NOT go for either agreeing to the settlement or agreeing to the attorney fees without getting a second opinion from yet another attorney. You can simply find a good solid personal injury attorney who does those “no fee initial consultation” ads. She can give you some idea of the following, and how to make sure your present attorney does in fact clear the answers to the following.
FIRST, do not go for the policy limits UNLESS AND UNTIL you get a second opinion that:
a) There is not some other tortfeasor, such as a property owner who let brush grow in the right of way to block views, or a city for poor road design, etc.
b) There is no blockage against this tortfeasor filing bankruptcy to discharge your judgment. Your attorney should have checked to see whether or not this tortfeasor is prevented from filing for bankruptcy, perhaps because insufficient time has elapsed since he last filed.
c) There are NO ASSETS that the tortfeasor owns above the exemption levels for bankruptcy in your state. If you were to obtain a judgment for $300K, and the defendant discharged it in bankruptcy court, then you still get to levy upon all assets ABOVE the exemptions for your state. In this large size case, it is INCOMPETENT AND MALPRACTICE for your attorney to ask you to settle for limits if he has not obtained a written list of all assets of the tortfeasor, signed either under oath or certified to be true under penalty of perjury. You have every right to see the list of assets and to be instructed as to what assets are exempt from execution of your judgment if the tortfeasor should elect to file bankruptcy.
d) This tort is not subject to bankruptcy, in which case you get all of the assets, subject of course to prior security arrangements, such as a mortgage or pledged collateral (vehicle). All torts ARE subject to discharge in bankruptcy EXCEPT a few that involve certain criminal activity. A DUI is a good example of one that the tortfeasor cannot discharge in bankruptcy.
e) Subrogation defense is part of the obligation of the attorney. He MUST fight against subrogation. Introduction to Subrogation http://www.settlementcentral.com/page0459.htm —Forced Payback to YOUR OWN Insurer From Your Personal Injury Award
SECOND, get an opinion as to the fees that HAVE been “EARNED” and what your State Bar Association offers in the way of fee dispute resolution.
a) Attorney fees are CONTROLLED BY LAW, and that law applies to all attorneys in all cases. The state law TRUMPS ANY ATTORNEY CONTRACT.
b) TO ACHIEVE A FAIR AND REASONABLE PERSONAL INJURY ATTORNEY FEE, LEARN AND CITE your State Rules of Professional Conduct REGARDING REASONABLE LEGAL FEES. Your State Bar Association http://www.settlementcentral.com/links.php can help you with this, and I would not hesitate to contact them ASAP.
c) Ask for—or research online—your State’s Rules of Professional Responsibility or Rules of Professional Conduct. Look for rules dealing with attorney fees. Specifically, the rule is usually number 1.5 in most states.
d) Here is the guidance direct from the site of the Washington State Bar Association, one of the leading institutions of its kind in the nation. www.wsba.org. This is for illustrative purposes, but your State Bar Association will likely have the same or similar content.
Factors in Determining Reasonable Legal Fees (NOTE, MY COMMENTS WILL BE IN CAPS FOLLOWING CERTAIN FACTORS)
There are a number of factors involved in establishing a reasonable legal fee according to the Rules of Professional Conduct for lawyers. They include:
1. the time and labor required, (HOW MANY HOURS SHOULD IT HAVE TAKEN TO DO WHATEVER IT IS HE DID?)
2. the novelty and difficulty of the questions involved, (SIMPLE TASKS HERE?)
3. the skill required to perform the legal service, (MINIMAL?)
4. the terms of any fee agreement between the lawyer and the client,
5. the fee customarily charged locally for similar legal services,
6. the likelihood, if clear to the client, that the acceptance of the particular employment will preclude the lawyer from accepting other employment;
7. the amount involved and the results obtained, (COULD THE SAME RESULTS HAVE BEEN "ACHIEVED" BY A BLIND DOG WITH A DEMAND LETTER IN HIS MOUTH?)
8. the time limitations imposed by the client or the circumstances;
9. the nature and length of the professional relationship with the client;
10. the experience, reputation, and ability of the lawyer, and
11. whether the fee agreement or any confirming writing demonstrates that the client received a reasonable and fair disclosure of material elements of the fee agreement and the lawyer's billing practices.
IMHO, if the tortfeasor's policy limits are only $100K, you should NOT PAY FULL ATTORNEY FEES. A blind dog with a note in its mouth could get a settlement for those limits. If that is the case, then get on top of this ASAP. Write to the attorney (e-mail is fine) to preserve your record. We are talking about tens of thousands of dollars at stake here, so make a written record.
NO MATTER WHAT YOUR FEE AGREEMENT SAYS, YOUR STATE BAR ASSOCIATION IS NOT GOING TO LET YOUR ATTORNEY ABUSE YOU BY TAKING A FEE HIGHLY DISPROPORTIONATE TO THE WORK INVOLVED!
Note that this is NOT just something that the attorney may or may not agree with: SHE IS DUTY-BOUND TO COMPLY WITH THESE RULES. The preamble to the rules states as follows:
”The Rules of Professional Conduct are MANDATORY in character. The rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."
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“Neither lawyer did anything more than I could have done representing myself... Can I fire both & represent myself?”
At www.SettlementCentral.Com we hear many victims of attorney fee greed lamenting that they could have made a settlement on their own. Sometimes that is just not so: what appears easy in fact took a good attorney to achieve. Is that the case with your claim? I have NO IDEA. But, going solely upon what you present to me, it appears that the attorney fees are UNEARNED because in fact you COULD HAVE made such an insurance settlement via www.SettlementCentral.Com demand letter samples and information. Hence, we are talking a savings of tens of thousands of dollars.
Can you fire the attorneys? Perhaps you can, BUT BE SURE to get that second opinion first to the effect that this is all that you can get in the case. In other words, you can do this on your own ONLY if the policy limits are all the money available.
The full attorney fees will be claimed, so you will want to have the second opinion attorney assure you that you are no firm grounds with respect to what the Rule 1.5 fees should be.
You WILL owe some kind of attorney fees, but they CANNOT make a possessory lien on your file. Write to me at my website if they try to do that. But since we do not answer any visitor mail (our own malpractice insurer would croak), be sure to mention that you met me at allexperts.com.
You may have to agree to a lien for costs, BUT no money has to be paid to pick up your file. Plus, as to the fees, you can simply state that you will agree to a lien in the amount decided as appropriate by your State Bar Association.
If you do have UIM coverage, try to stop the attorney from making any demand versus your coverage until you can get that second opinion.
OK, Trish, I have made a lot more work for you than you asked about, but I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
