We have all been there...! One way to avoid being trapped is to
obtain as much information as possible from the client spelling out
for them what they must provide before entering into a fee agreement.
The fee agreement should also include language regarding the client's
duty to cooperate with the attorney, to be honest and complete in
their disclosures to the attorney. This in combination with written
instructions on what information the client must provide helps protect
the attorney from the client pointing the finger of blame in the
attorney's direction when things go south. The client is in breach if
the client does not abide by the disclosure reponsibilities in the fee
agreement. Then if the simple Chapter 7 case turns into a monster
Chapter 13, because the client failed to provide the attorney with
information up front, the attorney can at least retain a prorata
portion of the fees paid for the time spent or require the client to
enter into a new fee agreement for Chapter 13, since there was a
material difference in factual circumstances from those presented by
the client in inducing the attorney to enter the previous agreement.
If it is a Chapter 13 and the attorney is using RARA then extra
motions not in bold on the RARA form are hourly and paid after
supplemental fee application approved by the court. If the attorney
is not using RARA he/she should be biling for these extras hourly
through a fee application/supplemental fee application. If a Chapter
13 is unfeasible because the client failed to disclose information to
the attorney up front, then it is not the attorney's fault. However,
remember the attorney's scope of employment under Local Rule 3015-1(u)
"(1) Scope of Employment. LBR 2090-1(a) is modified in chapter 13
cases as follows: Any attorney who is retained to represent a debtor
in a chapter 13 case is responsible for representing the debtor on all
matters arising in the case, other than adversary proceedings, subject
to the provisions of a Rights and Responsibilities Agreement
Between Chapter 13 Debtors and Their Attorneys, into which the
debtor and the attorney have entered and that complies with these
rules."
The attorney cannot pick and chose what work we are willing to do in
a Chapter 13 because we are worried about being paid. If a case
becomes too complex, an attorney can always seek cocounsel from one of
the CDCBAA veterans to help learn the ropes, so long as the client
consents in writing and appropriate disclosures are made. Otherwise
the attorney must seek to withdraw if the attorney is not capable of
competently representing the client or if it is a financial hardship
for the attorney.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
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On Mon 1/02/10 2:33 PM , Amy Clark
kleinpeterbk@gmail.com sent:
Hello all!
A friend has this problem currently but I have surely been there and
am seeking advice for the both of us!
What is suggested when a newer attorney, especially newer to BK,
takes
on a case that seems relatively straight-forward, and then as more
information comes out (post-signing of retainer) it becomes clear
that
this case is actually VERY complex and fraught with risk?
The question is not about what a bummer it may be if this happens on
a
flat-fee 7 -- that is just the breaks, IMO. I am asking more for
13's
that end up requiring multiple motions, the client's business
records
are in shambles, potential commingling breaks out, etc.
The problem is that work has been done and referral fees are not
allowed. Is it permissible to associate with another attorney at
that
point? Or what is the best practice?
-- Amy Clark Kleinpeter
1489 E. Colorado Blvd. #207
Pasadena, CA 91106
(626) 507-8090
"Bankruptcy, Michael, is nature's do-over. It's a fresh start, a
clean slate."
"Like the witness protection program!"
"Exactly."
Links:
[1] mailto:
kleinpeterbk@gmail.com?subjectQuestion: when case becomes
more complex after signing up the
client...
[2] mailto:
cdcbaa@yahoogroups.com?subjectQuestion: when case becomes
more complex after signing up the
client...
[3]
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