Introduction
If you’re engaged in litigation… get a lawyer! For good reason: it’s the lawyer’s unique duty to protect people from abuses by government and its agents, and to help remedy the wrongs of others, whether they be strangers or spouses, employers, or multi-national corporations.
Your Rights
In today’s society – with its complicated network of laws, government regulations and court decisions – it’s rare not to encounter lawyers as we move through life. You have the right to consult with, and be represented by, an attorney whenever you choose, and in all matters involving the government. Generally speaking, like any other professional service, the client is responsible for legal fees. In civil matters not involving criminal penalties, people who are unable to afford attorneys can seek the help of legal-aid organization. County and city bar associations can provide the names, addresses, and telephone numbers of local organizations that provide legal assistance to the poor. Courts are also empowered to appoint counsel for "poor persons" in civil actions when appropriate. A person who is charged with a crime has the right to counsel (known as a Public Defender) at government expense if the person is financially unable to privately hire an attorney.
Selecting an Attorney
In selecting a lawyer, the consumer should take the same careful steps that one takes in choosing a physician or a dentist, or a home contractor. If you do not know a lawyer, ask friends, neighbors, or others whose opinion you respect for a recommendation. There are also statewide referral services, operated by state, county and city bar associations that will find you a list of attorneys. Legal consumers have a wide variety in choices in law firms. They include sole practitioners, small, medium and even "mega-sized" firms with hundreds of lawyers on staff. Thoughtful consumers should take a law firm’s size into account, particularly if the legal matter contemplated might cover a period of years. Larger, better-established firms that have been around since the Civil War have a higher likelihood of being in business in five years. There’s wide variety of attorneys out there for your consideration. We’ve all seen the advertisements on television and on the highway… but choose carefully!
Consultations
The first meeting with a lawyer is frequently called a "consultation" – an opportunity for client and lawyer get acquainted, and to discuss the client’s legal matter. First consultations are frequently free, or for a modest charge. You should ask if there’s a legal fee when you contact the attorney to schedule a consultation appointment with a lawyer. Clients should not fear in asking tough questions. Ask where the lawyer attended college and law school. Inquire about the lawyer’s experience in the area of law in which you need help. Do not be afraid to ask for references from other clients and lawyers; even a sample of the lawyer’s written work. Remember – the lawyer is being hired by you, not vice-versa. Legal consumers should be aware that lawyers are not required, either by law or court rule, to maintain malpractice insurance. Don’t be afraid to ask if the lawyer or firm has malpractice insurance and if they do, how much coverage.
What is a Retainer Agreement?
Make sure that your lawyer or firm provides you with a retainer agreement. A written contract between an attorney for and you for legal services is called the retainer agreement. Before signing it, take it home and study it carefully. At a minimum, the retainer agreement should set forth the legal work to be provided, the amount of legal fees paid to the attorney, including other expenses (paralegals, research, investigators, etc.). The retainer agreement should also cover you responsibility for other expenses like court filing fees, photocopying, telephone calls, etc. Ask for an estimate of the total charges that will be billed to you. If you’re required to pay money up-front, make sure the retainer agreement does not describe it as a non-refundable fee – that kind of fee is unethical in New York.
Confidential Relationship
When a client hires and attorney, a confidential relationship is created between the two. The lawyer’s primary task is to make sure that the client’s legal rights are fully protected. Lawyers must represent their clients zealously. They must also preserve confidences and secrets that are revealed to them in the course of an attorney-client relationship. The client has the right to make the final decisions on the objectives to be pursued in the client’s case, despite the wishes or recommendations of the attorney. An attorney cannot refuse to represent a client on the basis of race, creed, sex, color, sexual orientation, age, national origin, or disability.
Statement of Client’s Rights
The Lawyer’s Fund for Client Protection (www.nylawfund.com) have published a statement of client’s right that have been recognized in the New York State court system as a guide to responsibilities of attorneys:
- You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer’s office.
- You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).
- You are entitled to your lawyer’s independent professional judgment and undivided loyalty uncompromised [without] by conflicts of interest.
- You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory.
- You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.
- You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.
- You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).
- You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved tot the extent permitted by law.
- You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.
- You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin, or disability.
Communication
Make sure that you understand when you can communicate with your attorney. Ask for a monthly billing for legal services and other expenses. If you dispute any of the charges in your bill, immediately speak with your attorney. Get full documentation and/or receipts for any payments you make. The client should always keep in mind that attorneys’ fees are no different than checking the grocery bills – mystery and confusion are not part of the deal. If you think you’re being overcharged for services, bring it to the attention of the attorney. Keep a receipt for any property that you entrust with a lawyer or firm for safekeeping. It’s fundamental for the client and the lawyer to be informed of the progress of the legal matter, and the related financial responsibilities.
If an attorney fails to return your telephone calls, respond by expressing your disappointment to the lawyer in a polite written letter. Keep a copy – just in case the problem continues. If a lawyer repeatedly stalls or avoids your requests for information, or telephone calls, that’s a clue that something is wrong, or your lawyer isn’t providing the best service available. Give the lawyer a polite written deadline, and indicate that further delay will obligate you to file a complaint with an attorney grievance committee. Lawyers do not like the attorney grievance committee. Lawyers, by New York law, are required to keep the client’s funds independent of the attorney’s funds. Those accounts should be free of problems at all times. If a check bounces or finances don’t make sense, there’s a problem, and a possible abuse of your funds! If a lawyer bounces a check payable to a client, the best course of action is to notify the attorney grievance committee.
Extracurricular Activities
Clients and lawyers should avoid romantic, personal, business or social situations that can damage that objectivity and the truthfulness that’s required in a professional relationship. The foremost abuse of the attorney-client relationship is the intermingling of money between clients and attorneys. Loans and investments by clients with lawyers are not illegal, but are quite dangerous for both parties. Clients approached by their attorney to invest or borrow money should consult an independent attorney. Avoiding this type of situation removes all opportunity to abuse the client’s funds.
Who’s In Control at Trial?
During litigation, always remember that your opinion counts. Obviously, the attorneys you’ve chosen have experience in the system, and his or her recommendations will be in your best interest. Your attorney is there to explain court procedure and protect your rights, so be involved! The attorney isn’t the focus of the litigation – it is you. Win or lose the attorney goes home and moves on to the next case. Don’t regret not knowing what happened or why a decision or situation resulted in the way it did. You’re paying the attorney for their time and effort, please make the most of those hours.
The End
The attorney-client relationship can end at any time, and for nearly any reason. If you discharge your attorney, do it in writing and keep a copy. Keep a copy of any important communication between yourself and the attorney. Documentation is very important to lawyers and disciplinary committees. Remember that discharging an attorney does not relieve the client of legal bills for that attorney prior to discharge. Clients in fee disputes with attorneys can contact an attorney grievance committee for information about local arbitration programs.
Bad Lawyer? Where Do I Complain?
The authority to regulate and discipline attorneys in New York is the Appellate Division of the Supreme Court. There are four regional Appellate Divisions, and each have Grievance Committees to investigate and prosecute attorney misconduct. Lawyers engaged in malpractice, deceit, fraud, theft and the misuse of client funds (among other illegal and unethical activities) are grounds for professional discipline. Attorney Grievance Committees accept written complaints of professional misconduct concerning lawyers with offices in their region.
Below is a list of the Attorney Grievance Committees for New York State:
First Department
New York and Bronx Counties
Second Department
Kings, Richmond, Queens Counties
Nassau and Suffolk Counties
Dutchess, Orange, Putnam, Rockland, and Westchester Counties
Third Department
Albany, Broome, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Madison, Montgomery, Otsego, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyer, Sullivan, Tioga, Tompkins, Ulster, Warren and Washington Counties
Fourth Department
Herkimer, Jefferson, Lewis, Oneida, Onodaga, and Oswego Counties
Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne and Yates Counties
Allegeny, Cattaraugus, Chatauqua, Erie, Genesee, Niagara, Orleans, and Wyoming Counties
Packet Published 2001
Researched, composed, and edited by John Menard.
SBI Legal Assistance Director: Alex Melville