Help with Lawyer Settlement

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The story is long, sorry. Basically, a lawyer screwed up my case by not supplying me with two documents within a specified time limit. One of the documents had a 120 day window, but the attorney notified me after 89 days which didn't leave me much time to respond. The lawyer then didn't send me the document and did not respond to my repeated requests for the document until after the 120 days had past, and then the lawyer said that the document was lost. The other document had a 60 day window, and the attorney didn't tell me about it until after the 60 days had past. I lost my case. I may have lost anyway, but I didn't have the chance to prove my case due to the documents being late or expired.

I wrote an honest review on the Internet about this and posted this in two places. When the attorney saw the reviews, the attorney called me and apologized profusely, then offered me a complete refund of my retainer if I took down the reviews, I said that I don't discuss reviews as a matter of policy. Then the lawyer started to insinuate the the reviews were inaccurate (they aren't) and that the practice was losing business because of it and also insinuated that I was going to be sued. The lawyer followed up in an email stating that my retainer would be refunded "without prejudice" in exchange for removing the reviews and then ranted on the damages the reviews has caused the practice. I didn't respond to the email.

I then filed a complaint with the Bar for the original problems with the documents (not the threat of being sued.) The Bar read my complaint and opened up an investigation. When the attorney saw the complaint, the attorney emailed me and said my retainer was being refunded and that I would also get a "general release and wavier" which would state that I wouldn't be sued for the review(s). The attorney also responded to the Bar about the complaint (which I got a copy) saying that because I was notified before the 120 days were up (for that particular document) then arguably I had the opportunity to act before the expiration date even though neither of us actually had the letter (the attorney lost it) and even though I only had about 30 of the 120 days left to get my act together. The lawyer did not mention at all about the other document with the 60 day window of which I wasn't contacted until after the 60 days had past. The lawyer also told the Bar that my retainer was "refunded" (as in past tense.)

For a while, I did not get any refund (and by the way, my complaint to the Bar was not about a refund but rather that the attorney violated a code of written ethics published by the Bar.) I also responded to the Bar (at their request) after they read the attorney's response, and I argued my side of things well, and I also stated that I haven't received any refund. A few days later, I got a check for the refund, a COPY of the document that expired after 120 days (which I guess he either found or got a copy), and the following note signed by the attorney on letter head:

"I, attorney name, hereby release my right to sue my name, his heirs and assigns for the alleged publication of a review(s) of my services on the internet, posted in month and year of the date posted.

So sorry about the longevity of the post, but I'm wondering what you all think. Does the letter mean the lawyer can't sue me for the review at all? Also, my complaint to the Bar is completely honest and I argued my side well. The investigation is ongoing. Can the lawyer sue me for that if the investigation concludes that the lawyer didn't violate the code of ethics even though I acted in good faith? (I think the lawyer screwed up, but the investigation isn't over yet.)

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Worry about it when it happens.

I think you won the battle here.

I read that statement to mean the lawyer says he wont' sue you for the reviews.

I can't see how he'd have any grounds at all to sue you for a complaint to the Bar that is accurate and honest.

OTOH anyone can sue anyone and lawyers seem more sue happy than your average guy.

IANAL.

I've met 2 lawyers who are both genuinely good people and competent in my entire life. Unfortunately, I've met dozens of lawyers. Good job PerkGetter!

You can also sue the lawyer for malpractice

umcsom said:   You can also sue the lawyer for malpractice

This. Online reviews and the Bar Association(lol) are not what the offending attorney is worried about and how quickly he was willing to 'refund your fees' confirms this. Your old attorney doesn't give a rats @ss about his retainer($5k?). If you lost strictly because of his failure, and nothing else, then he would be liable to pay you the value of your court case ($100k?).

To do this you need to enlist another, more organized, attorney. That attorney will send a demand letter to your original attorney and/or a request to see a copy of their current malpractice insurance policy. At that point, his insurance company will hire their own attorney and start negotiating with your new attorney. Their goal is to discern:
A.) Did the attorney CLEARLY and ABSOLUTELY commit a professional mistake?
B.) Did that mistake likely and significantly impact the outcome of your case?


This is NOT a quick process though, and your new attorney might not take the case on contingent fee basis. I would hold off on letting your new attorney assess 'whether you would have won anyway or not' in part B.) above. But what you can do is assess part A.) above:

Were you at any point negligent or slow to respond to your attorneys instruction? If he gave you that document on the 118th day, saying you had 48 hours to mail it, certified, and you didn't do it then forget it. Malpractice cases are expensive so the burden of proof is much higher.

NOTE : Putative damages are usually not allowed in malpractice cases either so your potential award would be limited to your actual damages. So unless your original court case had a value of more than $100k, it's probably not gonna happen....

DShaw94 said:   
NOTE : Putative damages are usually not allowed in malpractice cases either so your potential award would be limited to your actual damages. So unless your original court case had a value of more than $100k, it's probably not gonna happen....

  Isn't that state dependent?  

That being said if it was a 6 figure case it seems like a no brainer.  Only issue is if you live in a small city the lawyers might be tight and you have to go to an outside city to find one to take the case.

Just replying to say keeping your review up and not negotiating to take it down is appreciated (not necessarily about this specific case, but just generally as well). People that are willing to do that are in short supply.

Wait for the bar to rule... then sue for damages due to the lost case... the lawyer likely has professional liability insurance that would prefer to negotiate a settlement...

umcsom said:   You can also sue the lawyer for malpractice
This. When I practiced, I did a lot of attorney malpractice work (though I am not your lawyer).

Do not sign any releases. Personally, I wouldn't even accept a return of my legal fees until I consulted another attorney, unless I was desperate for the cash, lest that be construed as some type of consent to settlement.

How much was your first case worth, and did the attorney's screw-up foreclose you from pursuing it again? You should seriously consider consulting another attorney (preferably a professional malpractice plaintiff attorney). Statutes of limitations vary, so you should do this promptly.

And yes, if the malpractice attorney screws up your case, you can sue him/her too.  

umcsom said:   DShaw94 said:   
NOTE : Putative damages are usually not allowed in malpractice cases either so your potential award would be limited to your actual damages. So unless your original court case had a value of more than $100k, it's probably not gonna happen....

  Isn't that state dependent?  


Correct. It's determined by state law. In the 1970's there was a malpractice crisis which caused most states to enact significant 'tort reform' legislation to keep the Malpractice Insurance companies from going out of business. A common tenent of this state-by-state reform was that malpractice insurers can exclude Puntative Damages from their covereage which effectively limits judgements to the ACTUAL damages incurred.

So every state is a little different and Trial Attorney lobbyist are constantly trying to overturn Tort Reform law so this is subject to change....

umcsom said:   
DShaw94 said:   
NOTE : Putative damages are usually not allowed in malpractice cases either so your potential award would be limited to your actual damages. So unless your original court case had a value of more than $100k, it's probably not gonna happen....

  Isn't that state dependent?  

That being said if it was a 6 figure case it seems like a no brainer.  Only issue is if you live in a small city the lawyers might be tight and you have to go to an outside city to find one to take the case.

Punitive damages are usually excluded from insurance coverage as a matter of public policy. Punitive damages are generally awarded for intentional bad acts, and imagine a system in which you could buy insurance to insulate you from your own intentional bad acts. But just because the insurance policy may not cover them doesn't mean that they can't be awarded (and collected from the attorney himself).

BigFatCat said:   Wait for the bar to rule... then sue for damages due to the lost case... the lawyer likely has professional liability insurance that would prefer to negotiate a settlement...
   RE: suing for malpractice: Generally you have to prove that you had a successful underlying case in order to sue for malpractice. Your jurisdiction's malpractice attorneys can advise you further on this. Also, you SHOULD NOT WAIT for the bar to rule, as there may be statute of limitations actions on malpractice. Some states have a very narrow window to bring your claim, and by waiting you could be waiving your opportunity here. Again, seek legal advice from a malpractice attorney within your jurisdiction.  

Right move. Wait for bar rule. Am also wondering. Because, am also hiring many lawyers but they are genuine.

Please share the name of your attorney so we don't use him/her.



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