Is it ethical for a lawyer to accept a client, work for him, then drop him when the client's adversary hires the lawyer to put a lien on a property which arose from the dispute the lawyer was hired to avoid in the first place, because there is ...

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Is it ethical for a lawyer to accept a client, work for him, then drop him when the client's adversary hires the lawyer to put a lien on a property which arose from the dispute the lawyer was hired to avoid in the first place, because there is no basis for the lien? When the adversary hired the lawyer to place the lien, the lawyer said that he had done work in the past for the adversary and thus would have to drop me, the client, to avoid a conflict of interest. Obviously, he knew that he had done work for the adversary before he agreed to work for me.

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DakotaLegal's picture

 

 
No, based on what you said, there is very little in the way of defending this kind of legal “representation.” Unfortunately, there will be some real difficulties in correcting the situation. Let’s look at the several things you might want to do to (a) prove the lawyer’s misconduct (b) calculate your damages from his behavior and (c) try to fix the lien.
 
As we discuss these factors, keep in mind there are some practical problems with getting a sense of justice when your lawyer doesn’t use his best skills for you. This is because a lawyer is not expected to be perfect…but only competent.
 
There may be another issue, as well, when it comes to proving you actually had a “lawyer/client” relationship. Sometimes, there has been no retainer paid, no bills sent to you, and not even a contract signed. Some “clients” are surprised to find out they never really were a client. Here’s one way that could happen. Acting under an emergency, someone gets a “free consultation.” The lawyer indicates they will probably be willing to take the case…but the client doesn’t really grasp the meaning of the lawyer’s saying the law office will need to check for any client conflicts. Or maybe the lawyer even forgot to mention this important detail. It can be your word against his. A week goes by; the lawyer never calls back, and essentially forgets all about your case. Without more than a free consultation, the lawyer may argue you were never a client.
 
Even if you do prove you were a former client, Idaho has only relatively recently been forced to allow malpractice suits for a breach of “loyalty.” Here’s an important case explaining the problems and the importance of defining “loyalty” to a former client. http://caselaw.findlaw.com/us-9th-circuit/1287831.html. The case, however, does help you by explaining lawyers owe a duty of loyalty.
 
In this case, is the lawyer’s failure to tell you they had a conflict harmful or a breach of a legal duty to you? Maybe. We’ll talk about some of the things you can do to prove you (a) relied on the lawyer, that (b) this was reasonable on your part, and that (c) there were damages done to you because of your “reasonable reliance.”
 
If I had to make a prediction, the lawyer will probably first say you never gave him enough information to identify that another of his clients was on the “other side of the case.” Be ready to disprove this. The second line of defense may be that you didn’t give up any confidential information, and that his representing someone else didn’t hurt your case. We’ll talk about disproving that in the “damages” section below.
 
 
Your Right To Full, Impartial and Adequate Representation
 
The duty to avoid both real conflicts and the “appearance” of a conflict of interest is ethically essential. It’s so important, that it is included in what are known as a lawyer’s ethical considerations. But there are actually two sets of rules…(I) ethical considerations, and (II) disciplinary rules. As the names suggest, usually only a violation of “rules” is usually serious enough to entitle you to possible damages and subject the lawyer to a strong disciplinary review (and possible damages in a lawsuit) for his conduct. These complaints are also subject to investigation through the Idaho Bar Association. Here’s information on that process… http://isb.idaho.gov/pdf/bar_counsel /bc_ complaint _form.pdf.
 
So, here’s a link for you to look at the “ECs” and the more serious “DRs” http://isb.idaho. gov/pdf/rules/irpc.pdf.
 
Trying To Prove Misconduct and Damages
 
Sometimes, it’s even hard to get a lawyer to hear another complaint against another lawyer. The smaller the town, the bigger this challenge may be. But if you’re in a city, certainly the size of Boise, or probably even Pocatello, you can find a lawyer who specializes in lawyer malpractice. You can use the Idaho Bar Association’s referral system: http://isb. idaho.gov/member_services/lrs/lrs_search_panel.cfm. If you are low-income, you might check your eligibility through legal aid: http://idaholegalaid.org/.
 
As mentioned, there may have been no retainer or billings between the two of you. If there were, you certainly have a valid claim for a total refund of all moneys paid by you. I’d be surprised if the attorney actually kept any money you paid…this would itself could be used as evidence of malpractice.
 
You might be able to show that the lien itself is damaging and it wouldn’t have attached if you had adequate legal help.
 
About That Lien…
 
As mentioned, you may have suffered real legal harm by not having an adequate attorney to help and try and block the lien.
 
You may have been put in a position of losing property rights, or of having to hire another attorney to diligently guard you from that lien. It’s not a defense to the lien itself that a lawyer may have been incompetent or conflicted. But you will have a right to make a legal claim for all the costs from the lien, which were foreseeable as a result of that conduct. Once again, keep a careful record of any costs. If the property value and costs(s) of lien impairment are not easily determined, you may need to get an expert evaluation as evidence.
 

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DakotaLegal's picture

 

 
No, based on what you said, there is very little in the way of defending this kind of legal “representation.” Unfortunately, there will be some real difficulties in correcting the situation. Let’s look at the several things you might want to do to (a) prove the lawyer’s misconduct (b) calculate your damages from his behavior and (c) try to fix the lien.
 
As we discuss these factors, keep in mind there are some practical problems with getting a sense of justice when your lawyer doesn’t use his best skills for you. This is because a lawyer is not expected to be perfect…but only competent.
 
There may be another issue, as well, when it comes to proving you actually had a “lawyer/client” relationship. Sometimes, there has been no retainer paid, no bills sent to you, and not even a contract signed. Some “clients” are surprised to find out they never really were a client. Here’s one way that could happen. Acting under an emergency, someone gets a “free consultation.” The lawyer indicates they will probably be willing to take the case…but the client doesn’t really grasp the meaning of the lawyer’s saying the law office will need to check for any client conflicts. Or maybe the lawyer even forgot to mention this important detail. It can be your word against his. A week goes by; the lawyer never calls back, and essentially forgets all about your case. Without more than a free consultation, the lawyer may argue you were never a client.
 
Even if you do prove you were a former client, Idaho has only relatively recently been forced to allow malpractice suits for a breach of “loyalty.” Here’s an important case explaining the problems and the importance of defining “loyalty” to a former client. http://caselaw.findlaw.com/us-9th-circuit/1287831.html. The case, however, does help you by explaining lawyers owe a duty of loyalty.
 
In this case, is the lawyer’s failure to tell you they had a conflict harmful or a breach of a legal duty to you? Maybe. We’ll talk about some of the things you can do to prove you (a) relied on the lawyer, that (b) this was reasonable on your part, and that (c) there were damages done to you because of your “reasonable reliance.”
 
If I had to make a prediction, the lawyer will probably first say you never gave him enough information to identify that another of his clients was on the “other side of the case.” Be ready to disprove this. The second line of defense may be that you didn’t give up any confidential information, and that his representing someone else didn’t hurt your case. We’ll talk about disproving that in the “damages” section below.
 
 
Your Right To Full, Impartial and Adequate Representation
 
The duty to avoid both real conflicts and the “appearance” of a conflict of interest is ethically essential. It’s so important, that it is included in what are known as a lawyer’s ethical considerations. But there are actually two sets of rules…(I) ethical considerations, and (II) disciplinary rules. As the names suggest, usually only a violation of “rules” is usually serious enough to entitle you to possible damages and subject the lawyer to a strong disciplinary review (and possible damages in a lawsuit) for his conduct. These complaints are also subject to investigation through the Idaho Bar Association. Here’s information on that process… http://isb.idaho.gov/pdf/bar_counsel /bc_ complaint _form.pdf.
 
So, here’s a link for you to look at the “ECs” and the more serious “DRs” http://isb.idaho. gov/pdf/rules/irpc.pdf.
 
Trying To Prove Misconduct and Damages
 
Sometimes, it’s even hard to get a lawyer to hear another complaint against another lawyer. The smaller the town, the bigger this challenge may be. But if you’re in a city, certainly the size of Boise, or probably even Pocatello, you can find a lawyer who specializes in lawyer malpractice. You can use the Idaho Bar Association’s referral system: http://isb. idaho.gov/member_services/lrs/lrs_search_panel.cfm. If you are low-income, you might check your eligibility through legal aid: http://idaholegalaid.org/.
 
As mentioned, there may have been no retainer or billings between the two of you. If there were, you certainly have a valid claim for a total refund of all moneys paid by you. I’d be surprised if the attorney actually kept any money you paid…this would itself could be used as evidence of malpractice.
 
You might be able to show that the lien itself is damaging and it wouldn’t have attached if you had adequate legal help.
 
About That Lien…
 
As mentioned, you may have suffered real legal harm by not having an adequate attorney to help and try and block the lien.
 
You may have been put in a position of losing property rights, or of having to hire another attorney to diligently guard you from that lien. It’s not a defense to the lien itself that a lawyer may have been incompetent or conflicted. But you will have a right to make a legal claim for all the costs from the lien, which were foreseeable as a result of that conduct. Once again, keep a careful record of any costs. If the property value and costs(s) of lien impairment are not easily determined, you may need to get an expert evaluation as evidence.