August 29, 2015 • By Dennis Beaver
Our recent articles on ways of improving attorney-client relationships led to highly positive reader feedback from across the country, including a request from a Southern California Bar Association that we serve as a fee arbitrator in one of their cases where an attorney’s competence was the issue.
For lawyers, our Rules of Professional Conduct require competence, “Having the learning, skill, mental, emotional and physical ability necessary for the performance of the service.”
In this case, a Southern California lawyer took $3,500 from a mother wanting to protect her son from an abusive father, and even when faced with clear evidence of incompetence, still maintained that everything was done correctly.
In October 2013, Rosa learned that her husband had beaten their 8-year-old son with a belt, leaving bruises all over his body. She took photos and made a video on her webcam which had a time/date stamp. Justifiably fearful of repeated behavior, hubby was tossed out of their home that night. They later reconciled, and there were no further episodes of abuse.
In September 2014, the husband moved out and Rosa hired attorney “G” for a divorce. With the memory of that beating still very much present, she wanted custody and supervised visitation.
Without asking her specifically when the beating took place — or giving her the chance to bring in the webcam — G recommended applying for an Emergency Order, which could be obtained within a day or two with a few hours notice to her husband.
Family law attorneys who read this column will immediately recognize that Rosa’s case did not qualify for such a court order, as Family Code section 3064 requires:
(1) A showing of immediate harm to the child or the immediate risk of being removed from the State of California;
(2) Immediate harm to the child includes acts of domestic violence of recent origin or show a continuing pattern of violence.
Rosa’s signed Declaration revealed that she knew of the beating “a few months ago” from talking with her sister, who had first seen the marks. If G had taken the time to read the declaration — or knew the law — a voice screaming, “Don’t File These Documents! Even if you get your order, it will be set aside!” would have been heard.
Written retainer ‘an example of what not to do’
We had G’s 11 page unsigned retainer reviewed by an attorney who serves a large, Southern California Bar Association as a fee arbitrator, who commented:
“This retainer is an example of what not to do! The only thing lacking were nails with which to crucify G’s clients, with, for example, this completely unenforceable language: ‘We charge $3.50 per page for fax received and $.50 per page copied. If client walks in without an appointment to speak with attorney or staff, a $100 fee will automatically be added to your bill.”
Because G “Was so busy and couldn’t wait to get me out of the office to see other people, the retainer was never signed — they just handed me the document — which was filled out–and then said “That’s it for today,” and I left,” a lucky Rosa explained.
An unsigned a retainer has no legal effect, the lawyer only entitled to “the reasonable value of services performed.” This can be far less than the amount stated in the retainer.
Order obtained – and later set aside
With the Emergency Order, G properly filed a divorce petition, and off to court they went, the requested supervised visitation and custody was ordered because husband never got notice. Despite being given three phone numbers to reach him, G’s paralegal tried only one.
Shortly thereafter, the order was set aside and G dropped Rosa, which was a good thing as then a competent lawyer was hired. Justifiably feeling ripped off and wanting some money back, she applied to G’s Bar Association for Fee Arbitration.
Nice but incompetent
Our office was asked handle the arbitration, and we asked other family attorneys in the same town about G’s reputation in the community. “Nice but incompetent,” we were told, repeatedly.
Showing up late, there were other surprises, such as double billing, excessive charges, even a $10 for a 30-second phone call to his paralegal from Rosa.
Though maintaining that “everything was done correctly,” when we asked if some refund was in order, immediately over half of the money paid was offered and Rosa accepted.
With the local bar association flooded with complaints about G, one day there may be no clients to complain.
Competent, ethical lawyers put the interests of their clients first and have little tolerance for these kinds of behaviors.
The smile on Rosa’s face said it all.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.