10 Things Your Lawyer Won’t Tell You, Part II
by Richard
This is a continuation of yesterday’s post, which is a reprint of an article its entirety from the July 28, 2009 Smart Money.
(Copyright, SmartMoney magazine, July 28, 2009, by Brigid McMenamin)
6. “By the way, I never win.”
So your attorney has plenty of experience in his field—but has that been as a winner or a loser? How you find out depends on the situation. If you’re hiring him to defend you against a criminal charge, ask him if he has ever worked in the prosecutor’s office and for how long, because that’s where the best criminal defense lawyers typically get their training.
Also, for any court case—criminal or civil—you want to know how many cases he’s actually taken to trial in the past five years. Experts say even five or six can be plenty if at least one win is a case similar to yours. On the other hand, if a lawyer says his cases usually settle, that’s a bad sign. A guy who’s known for always settling probably isn’t prone toward driving a hard bargain. “It certainly helps if the defendant knows [a lawyer] is ready to go to court,” says Braud, the Kansas City, Mo., litigator, who has taken more than 40 cases to trial.
7. “I’d like to get to know you—a whole lot better.”
For years lawyers in most states weren’t legally restricted from sleeping with their clients. And many did. In fact, an issue of the Columbia Law Review in the early 1990s noted that sexual relations between attorneys and their clients were the legal profession’s “dirty little secret.” Around the same time, a University of Memphis survey revealed that nearly 20 percent of attorneys nationwide admitted that they or a lawyer they knew had had an affair with a client. But things have started to change. Since 2002, when the ABA weighed in on the issue, stating that lawyer-client sex is generally unethical but that it’s up to each state whether to adopt a ban on the practice, 29 states including Arizona, Colorado, and Connecticut have either added or proposed adding a new provision prohibiting lawyers from having sexual relations with their clients unless a consensual relationship existed before the lawyer-client relationship began.
So what’s the big deal if it’s two consenting adults? Lawyer-client flings, especially in divorce and family law cases, can warp the lawyer’s judgment, prompting him either to prolong a dispute or sacrifice the client’s interests to end it faster, says Texas Wesleyan University law professor Malinda L. Seymore. The client may also submit to a lawyer’s sexual advances in the belief that if she does, he’ll do more to help her keep her home and children.
That’s what Plantation, Fla., lawyer Steven W. Effman told two female clients to entice them to engage in sexual activity in his office, according to the women’s sworn testimony. Not only did Effman fail to deliver on his promises, these clients say, but he actually had the nerve to bill at least one for their trysts. The Florida bar filed a complaint against Effman in 2002, and a court suspended his license for 91 days. Effman insists his affairs were consensual and denies making promises or billing for sex.
8. “Okay, so I’ve made some mistakes in the past. Good luck digging them up.”
How do you know whether the lawyer you’re working with is a good egg or not? Trying to learn whether a lawyer has a record of ethics violations or even just a bad reputation can be an exercise in futility. For starters, the American Bar Association does keep a database of known ethics violators online, at www.abanet.org. But the ABA database relies strictly on voluntary reports from state bar counsels, and it costs $10 per name to search.
You could also try calling the bar counsel in the appropriate state—you can find yours listed at www.nobc.org. But that can also be a dead end, unless the attorney has been suspended or disbarred; some states may report that a lawyer is “in good standing” even if she has had lots of complaints or worse. Beyond doing a basic Google search of your attorney, which is free, you can also carry out a background search through commercial sites like www.knowx.com, which charges a fee that ranges from $10 to $100 to check the disciplinary records of a given lawyer.
9. “Wanna sue me? Oops—you signed that option away.”
Most lawyers are competent and ethical. But what if yours messes up? Can you sue him? Not if you agreed to submit disputes to arbitration, where the rules of law and evidence don’t always apply and you’ll have the right to neither a jury nor perhaps even to appeal. Many lawyers insert compulsory arbitration provisions in their retainer agreements, which isn’t unethical, according to the ABA, provided that the agreement doesn’t insulate the lawyer from liability and the client understands what it means. Such a clause should be a warning for you to take your business elsewhere.
Inventor Walter R. Fields says he didn’t realize he was giving up his right to sue when he hired Maslon Edelman Borman & Brand, a large Minneapolis law firm, to sue the builder of his mold-infested $1.2 million house. Disappointed when he lost his case, Fields tried to sue Maslon Edelman for malpractice, claiming among other things that the firm had failed to submit evidence of the mold in time. But in 2001 a Minneapolis court refused to hear the case because of an arbitration clause in Fields’s retainer agreement. Fields also came up empty after arbitrators rejected his claim and two courts upheld the arbitration. As Fields puts it, Maslon Edelman “won hands down.” (Maslon Edelman denies malpractice, claiming the mold was a side issue, and defends the arbitration clause, saying that Fields had weeks to review the agreement with a lawyer before signing.)
10. “Even if you can sue me, you won’t win.”
It’s mighty tough to nail a lawyer for malpractice. Some 71 percent of malpractice claims from 1999 through 2003 closed without the client’s receiving any payment from the lawyer’s insurance company, and only 6 percent netted more than $50,000, according to a 2003 American Bar Association survey, the most recent data available.
Why is it so hard? For one thing, only a fraction of lawyers even carry insurance, so collecting is a long shot. Plus, to win your case, you have to prove that the lawyer failed to perform but also that your suit would have turned out differently had he done a better job. Hard to do, since a legal issue is seldom a slam dunk, even if the lawyer does everything right.
Fortunately, there are lawyers who specialize in malpractice cases against other lawyers. “The best way to go about it is to get a referral from someone you trust,” says James Keeney, a Sarasota, Fla., lawyer who represents securities investors in arbitration and litigation against brokers, dealers, and firms. “And make sure he or she is board-certified.”
