My Attorney Failed to File a Response...

[great_ideas]

What is the name of your state (only U.S. law)? Indiana

Last year our GAL was awarded fees totaling about 60% of what she billed us.

History: She was hired by my ex and I in 2004. According to her and my attorney at the time she would be involved for about 6 weeks. She was involved for over 4 years. I told her 6 months into her involvement that I could not afford to pay her fees, and that I was asking her to withdraw. Instead she filed with the courts to be appointed as the GAL. I made small payments to her each month. I was unable to keep up and my bill exceeded $17,000. The judge told her that there was no way she would award her the total amount of her bill. I was responsible for 50% of the bill. My ex paid his 50% over the years. The judge reviewed the bill carefully and awarded an amount that she felt was fair. The GAL filed a motion to corect errors. The judge corrected one statement from her order, but refused to change the amount ordered. The GAL filed an appeal, and asked for her court costs as well. She offered to settle for 50% of the remaining amount and my ex and I refused, because the attorneys said that the chance of her receiving the amount she was asking for was almost zero.

I have been receiving copies of things from the attorney who handled the custody hearing. She never told me that she was not representing me for the appeal. I was sent things thru her office concerning the appeal. The Appeals Court issued a ruling last week that ordered the previous court to review the bill and breakdown the hours into attorney hours and GAL hours. They said that all hours were billed at the same rate and therefore you could not determine what was what. They said that the GAL hours should have been billed at a lower rate, the going rate for a GAL in our area. I discovered while reading the ruling that my attney had not filed ANY paperwork for the appeal process. She did not respond to the appeal. Neither did my ex's attorney. Was it negligent of my atorney to not file a response. She is still out of town from the holidays and not answering my questions. She never said she was not handling my appeal. She never said ahe was either.... I may have to comeup with $20,000+ because of her failure to handle the appeal process. I would have filed responses myself if I knew she was not.

What are my legal options? Should I file a complaint with the Indiana Bar? What can I do????

 

[Ronin]

You are presuming you would have won the appeal had your attorney filed a response. Not responding to an appeal does not guarantee losing. The only guarantee is that defending an appeal takes time and effort, which would have cost you more money.

Given the GAL who filed the appeal is an attorney, it is reasonable to assume she understands her legal rights with respect to determining the fees, and probably better than your own attorney. If she did not figure she had a decent chance of winning, she probably would not have filed an appeal.

She offered to settle for 50% of the remaining amount and my ex and I refused, because the attorneys said that the chance of her receiving the amount she was asking for was almost zero.

From the response by the appeals court she will probably not get what she is asking for, since some adjustments will be made for lower GAL vs attorney fees. However, she will probably get more than what she was willing to settle for. Seeing as how she was agressive enough to keep her GAL position after you tried to have her removed, I would have taken her threat of an appeal more seriously and probably settled for the half that was offered.

The legal dispute with the GAL is a separate matter from the custody case your attorney represented you on. In the absence of an agreement to continue representing you, the attorney was not obligated to represent you on the other case. It is not likely you have a basis for a complaint that the State Bar would take any action upon. You need to wait for your attorney to get back in touch with you in order to clear the air up on this miscommunication.

 

[great_ideas]

Does it matter that my attorney received information from the GAL and the appeal court and forwarded things to me. Actually the only thing that she has not forwearded to me is the Appeal's Court Ruling. She never said anything abotu Not representing me during the appeal. She told me that we would beat the appeal. The GAL copied her in all corespondence with the appeal count, ad my attorney never corrected the matter. I really did not know/ was never told that she was notrepresenting me for the appeal. Will any of those things make a difference?


Thanks, Ronin

 

[Ronin]

In the absence of an expressed agreement otherwise, your attorney was not obligated to represent you on this. Maybe your attorney realized the GAL may have had a good case and backed off. Given your current finances, there may have been some question on her getting paid if you lost the appeal. In this case, at least from the attorneys perspective, since she was not officially representing you, she was merely forwarding any documents received by her office to you.

These things cost money, and you not being billed for this should have been in indication something was not right. Attorneys may drag their feet on a lot of things, but getting paid for their services is usually at the top of their to do list.

If the appeals court ruled in favor of the GAL, there is a pretty good chance they would have done so even if your attorney had filed a response. The presumption on appeal is the judge was correct. This presumption has to be rebutted by the appellant, which in this case was done. Maybe your judge felt sorry for you and stretched the law a bit in reducing the fees. But the law is the law. Especially when it touches upon sensitive matters of attorney fees. Since this issue was raised on appeal, the appeals court was unlikely willing to set any precedent allowing judges discretion to mess with the holy grail of attorney fees.

So even if your attorney had filed a response, you would likely still have lost, and been even deeper in the hole from the costs of fighting the appeal.

 

[You Are Guilty]

If every retainer agreement I've seen, including my own, there is an explicit provision that appeals are not included/appeals cost extra, as is the practice in every state I've heard of.

So... what's your retainer say about the issue?

 

[seniorjudge]

If every retainer agreement I've seen, including my own, there is an explicit provision that appeals are not included/appeals cost extra, as is the practice in every state I've heard of.

So... what's your retainer say about the issue?

She never told me that she was not representing me for the appeal.

Did she ever tell you that she was representing you for the appeal?

 

[great_ideas]

In the absence of an expressed agreement otherwise, your attorney was not obligated to represent you on this. Maybe your attorney realized the GAL may have had a good case and backed off. Given your current finances, there may have been some question on her getting paid if you lost the appeal. In this case, at least from the attorneys perspective, since she was not officially representing you, she was merely forwarding any documents received by her office to you.

These things cost money, and you not being billed for this should have been in indication something was not right. Attorneys may drag their feet on a lot of things, but getting paid for their services is usually at the top of their to do list.
If the appeals court ruled in favor of the GAL, there is a pretty good chance they would have done so even if your attorney had filed a response. The presumption on appeal is the judge was correct. This presumption has to be rebutted by the appellant, which in this case was done. Maybe your judge felt sorry for you and stretched the law a bit in reducing the fees. But the law is the law. Especially when it touches upon sensitive matters of attorney fees. Since this issue was raised on appeal, the appeals court was unlikely willing to set any precedent allowing judges discretion to mess with the holy grail of attorney fees.
So even if your attorney had filed a response, you would likely still have lost, and been even deeper in the hole from the costs of fighting the appeal.

The attorney has been paid, and billed me for services including things such as reviewing the GAL's appeal, reviewing the case summary, having an attorney in her office call me (while she was on vacation) to answer my questions regarding the GAL's offer to settle.

The judge reviewed the GAL's entire bill and used that to determine the fees. She did not explain the method used to break down the hours. She did not provide a breakdown of the hours. The GAL did things such as billing me a long distance rate for phone calls. The catch is that I am not a long distance call. She billed for 1.5 hours travel time to and from my home for her visit. It is 30 miles round trip. I can be at her office (driving the speed limit ) in 20 minutes from my home.

If every retainer agreement I've seen, including my own, there is an explicit provision that appeals are not included/appeals cost extra, as is the practice in every state I've heard of.

So... what's your retainer say about the issue?

I do not see anything about appeals. It does talk about matters not related to the current case not being covered.

She never told me that she was not representing me for the appeal.



Did she ever tell you that she was representing you for the appeal?

She made comments about beating it, and said that the appeals court in Indiana leaves most things to the discretion of the Superior Court Judges. She continued to review things, and she continued to mail things to me. Actually, her name is on some of the papers from the Appeals Court as my attorney. To me that all means that she was representing me for the appeal. Why would I think otherwise?

 

[Ronin]

Not sure what you are asking for here. You rejected an offer to settle, and you lost.

Filing a complaint against the attorney will not make this go away. Under the circumstances the State Bar will take no action on this complaint, since you have to first establish that you had an expressed (not implied) agreement for representation on appeal, and that second, if not for the lack of representation, you would have surely won the appeal.

It is unlikely the appeals court will calculate the exact dollar amount the GAL is owed. The remand will mean the lower court will be required to do its job and review this again and determine the fees in a manner consistent with the appeals court opinion. Even so, the lower court should have some flexibility to address the concerns you have with the validity of some of these fees, and make adjustments accordingly. If so, this is where you should focus your efforts.