bankruptcyinstruction

Your Bankruptcy Lawyer Is Your Friend! Let me repeat that. Your bankruptcy lawyer is your friend. He is there to help you get a fresh start on your credit problems. Each person that gets into serious debt brings to that situation their own set of coping skills. Some don’t open the bills and mail they get from debt collectors and just let the […]

 When do you need a lawyer's help?

Sometimes it's a no-brainer, such as when you get sued or when you're arrested or charged with a crime. But keep in mind that people hire lawyers for advice and expertise all of the time, in all kinds of situations. While you may be able to get through a legal problem without hiring a lawyer, you should always remember that when you represent yourself, you might have a "fool for a client," as the saying goes.

One of the first things to ask yourself in deciding if you should consult an attorney is: "What's at stake?" When your finances or liberties are in serious jeopardy, the obvious answer is to get legal help. But what is serious? An ordinary parking summons is a brush with the law, but you need not consult with an attorney to pay the fine or even to fight it. However, if you've accumulated a number of unpaid parking tickets and a warrant has been issued for your arrest, you would probably want to hire a lawyer to help you best resolve the situation, and perhaps save you money or even keep you out of jail.

In good times as well as bad, individuals and businesses rely on their lawyer's advice to understand and secure legal rights and financial interests. Lawyers help clients with estate planning and business negotiations, strategies and transactions. With good legal advice, clients are better prepared to comply with and navigate through the complex mazes of governmental rules and regulations.

It is also a lot easier to rest easily after consulting with experienced lawyers for important undertakings such as tax and estate planning, drafting wills and trusts, negotiating business deals and even pursuing personal family matters such as adopting children.

What should you consider before you hire a lawyer?
It never hurts to talk to a lawyer, and it may be the best thing you can do if you think you have a legal problem that you can't resolve yourself. If you're persistent, you can probably arrange a free consultation with a lawyer who will talk to you on the matter.

Short of hiring a lawyer, though, you may want to look at alternative sources to resolve your legal issues. For example:

1.Many companies and public utilities offer customer service departments that effectively address consumer problems and complaints
2.Many state attorney general offices and other agencies provide consumer protection departments. (But it's not usually a good idea to try to gain an advantage in a legal dispute over adversarial parties by threatening to contact a government agency if they don't comply with your demands. It is possible that such action could be characterized as attempted extortion on your part.)
If you have a problem with a regulated industry such as banking or insurance, contact the agency in your state responsible for overseeing that industry
3.Many community groups such as elder associations, civil rights groups and other organizations offer free legal help and information.
4.Some disputes may be resolved by using increasingly popular litigation alternatives such as mediation or arbitration. Businesses and individuals might agree to use alternative dispute resolution (ADR) rather than court action to resolve legal conflicts.

How quickly should you consult a lawyer?

In many situations, it is obvious that you need to act fast. But even if you think you have lots of time to consider your alternatives, deadlines sneak up on you and lawyers need time to prepare. So it's always better to start looking for a lawyer sooner than later.

If you've been injured in an accident, keep in mind that there are time limits on your right to file a lawsuit. These "statutes of limitation" vary greatly from state to state and depend upon the fact and type of each case. In some instances, the law requires a claimant to notify potential defendants about any injury within an extremely short period of time - as little as a few weeks or months.

If you sit on your rights, you could lose them. You might have been angry for years over your neighbor's fence encroaching on part of your property. But if you wait too long without objecting or taking some legal action, the law might give your neighbor the right in the form of a prescriptive easement to leave the fence there permanently.

What are you trying to achieve?

This is an easy question to answer if you find yourself a defendant in a civil suit or charged with a crime. In these cases, your goal is to keep your money out of your adversary's pocket, or avoid criminal sanctions.

In other situations, your objective may be less clear. If you feel your employer unlawfully fired you, you might want to get your job back. If you suffered an injury from a defective product, you might wish to recover money damages. Or you may be faced with a situation where you need to seek an injunction against someone. Think about these things before you hire a lawyer.

And you must be realistic about your chances of winning and what your case is worth.

If you aren't sure what your legal rights are, it might be worth your time and expense to retain a lawyer to evaluate your situation and advise you on alternative courses of action. Even if you end up having to pay a few hundred dollars for to consult with an attorney, it could be a very wise investment that ultimately saves you time and money.

What type of lawyer do you need?

Many attorneys specialize in one type of law. Other lawyers handle a wide range of matters. You want to hire an attorney who has expertise to represent you effectively with respect to your legal problem.

Knowing a bit about the law will help you become a smarter legal consumer. From agricultural law to zoning and land use - from family law to taxation and more, lawyers.com provides incredibly useful information that can empower you to make better decisions with respect to your legal problems.

Federally Funded Programs
There is a national network of legal services offices receiving federal funds to provide free legal help in civil (not criminal) cases to low-income people. Services are generally provided by staff attorneys and sometimes paralegals with experience in certain areas, such as divorce, landlord-tenant problems, subsidized housing, public assistance, Social Security and unemployment.

A legal services lawyer may also be able to point you toward nonlegal help such as temporary housing, domestic violence shelters and food banks. Most legal services offices set an income limit to qualify for their services. Some programs also consider all your assets, regardless of how much money you're making. Check your local phone directory under "legal services" or "legal aid."

Pro Bono Programs
Many state, local and county bar associations have "pro bono" ("for the good" in Latin) programs manned by local attorneys who've agreed to provide free legal representation to those who qualify, either because of income or circumstances, such as AIDS, a battering husband, being over 65, etc. As with legal services offices, you may have to prove your income level as well as the value of your assets.

Self-Help Clinics
Some local and county bar associations put on free self-help clinics, where volunteer lawyers answer questions and help with forms. These often occur weekly or monthly. You may get to talk with an attorney individually, or you may be part of a large group, asking questions within earshot of others.

Courthouse Facilitators
Increasingly, county courthouses have facilitators to help people process their legal claims. Check with your local bar association or courthouse to see what's available. At a minimum, a courthouse facilitator can help you figure out where you should file your paperwork and walk you through the process of getting your paperwork to the right people within the court system.

Public Defender Organizations
All states have networks of criminal public defenders who provide free or low-cost legal help to defendants in criminal cases. People have to meet income eligibility requirements, so must document their income (or lack thereof).

Low-Cost Legal Programs
More and more programs are available for people who earn too much to qualify for legal services or pro bono programs, but don't make enough to hire an attorney at traditional rates. If you fall in this category, which a lot of us do, there are telephone hotlines that charge by the minute and sliding-fee programs to get you the advice and representation you need at the lowest price possible.

What To Expect
Don't be put off by run-down furniture or a casually dressed attorney who looks young enough to be your kid brother. Remember that the limited money available to fund these programs goes directly to office supplies and other overhead.

The lawyer you see may have an astoundingly large caseload or may be helping low-income clients in addition to his regular paying clients, so be patient if you have to wait to see him or if he doesn't return your calls right away.

It's helpful to write down a chronology of events of your case and also provide the attorney with copies of everything related to your case contracts, receipts, bills, whatever. When talking with the legal services lawyer, keep your description of the problem to the facts and don't wander onto tangents.

And don't fret that a lawyer might look down on you just because you're broke. Chances are, he has a family member or friend in the same situation, or has even experienced financial woes himself.

If you believe your lawyer hasn't properly represented you, and has harmed you in the process, you'll want to first try alternatives to litigation, such as:

Discussing fee disputes with your attorney or engaging in fee arbitration
Reporting potential ethics violations to your state bar association
Hiring another lawyer to repair the damage to an ongoing case
If none of these alternatives brings you satisfaction, you may want to consider a legal malpractice claim. This type of case is difficult to prove, so you'll want to thoroughly investigate your chances of success before proceeding.

Types of Legal Malpractice Claims
Every case is different, but legal malpractice claims usually fall under three categories:

Negligence happens when your attorney's processing of your case isn't up to the standard of skill and care that would be expected of a competent attorney handling that particular kind of case. Examples of negligence include:

Failing to file a lawsuit within the statute of limitations time required under law
Missing other important deadlines in the case
Not properly preparing for trial
Not following court orders
Most legal malpractice claims that end up in court are a result of lawyer negligence.

Breach of fiduciary duty usually occurs when your lawyer has a conflict of interest that harms you in some way. Examples of breach of fiduciary duty include:

Representing another client to your disadvantage (such as representing another defendant in the same lawsuit)
Having financial or social ties or troubles that prevent your lawyer from representing you to your best advantage
Improper sexual advances toward you
Lying to you about important case information
Not communicating settlement offers
Settling your case for less than it was worth without your approval
Inappropriately using money belonging to you
Breach of contract cases are occasionally brought against lawyers who violate the terms of their specific agreement with their client.

Proving A Legal Malpractice Case
To win a negligence case against a lawyer, you must prove:

Your lawyer owed you a duty to competently represent you
He or she made a mistake or otherwise breached the duty owed to you
Your lawyer's mistake injured or harmed you in a way that can be measured financially
Legal malpractice attorneys usually charge a contingency fee of between 40 and 50 percent of the amount you eventually receive. This is a higher contingency fee than other types of negligence cases, because the legal malpractice lawyer has to work harder at proving a legal malpractice case. In order to establish your damages, the legal malpractice lawyer must prove that:

1.You would have won your underlying case if your lawyer had not been incompetent or otherwise made a mistake
2.You would have been able to collect on a judgment on your underlying case after winning the case
3.As these things are difficult to prove, most legal malpractice cases are tried in court rather than settled, requiring a lot more preparation from your legal malpractice lawyer.

Any legal malpractice lawyer considering taking your case will want to know whether your original lawyer had malpractice insurance to cover your losses, and will balance whether your provable losses are high enough to risk investing the time and energy to take the matter to trial.

4.The time limit for filing a legal malpractice case - called a statute of limitations - can be as short as one year, so it's best to contact a legal malpractice lawyer right away if you think you might have a legal malpractice case.

How much are you willing to spend?

Legal services aren't cheap, how much are you willing to spend? What are typical fee arrangements for legal services? How much can you expect to pay? What about expenses and court costs? How can you keep track of fees for legal services? What about free or low-cost legal services? What should you do if you are charged with a crime but can't afford a lawyer?
When you're shopping for legal services, always ask potential attorneys to fully explain their fees and billing practices. Don't hesitate to ask detailed questions and don't be embarrassed. A lawyer's willingness to discuss fees is an important indicator of how he or she treats clients.

What are typical fee arrangements?

Standard payment arrangements an attorney may suggest include:

Hourly rates
Flat fees
Retainers
Contingent fees
Hourly rates are the most common arrangement. Here, the attorney gets paid an agreed-upon hourly rate for the hours he or she works on a client's case or matter until it's resolved.

How much is an hourly rate?

It depends on each attorney's experience, operating expenses, and the location of his or her practice. Cheaper is not necessarily better when it comes to your legal protection. A more expensive lawyer with a lot of experience may be able to handle a complex problem more quickly. Also, an experienced attorney will be able to better estimate how many lawyer hours a particular matter will take to resolve.

Flat Fees

Where a legal matter is simple and well defined, lawyers typically charge a flat fee. Examples of flat fee matters include wills, uncontested divorces and simple bankruptcy filings. If an attorney suggests or has advertised a flat fee, be sure you understand exactly what that fee will and will not cover. The flat fee might not include expenses such as filing fees.

Retainer Fee

A retainer fee is typically, but not always, an advance payment on the hourly rate for a specific case. The lawyer puts the retainer in a special trust account and deducts from that account the cost of services as they accrue. During the course of legal representation, clients should review periodic billing statements reflecting amounts deducted from the retainer. Most retainers are non-refundable unless labeled "unreasonable" by a court. If you decide to drop a case that your lawyer has worked on before the retainer has been exhausted, you may forfeit the remainder.

Contingent Fees

In certain types of cases, attorneys work on a contingent fee basis. "Contingent" means that the attorney takes no fee from the client, but gets a percentage typically one-third of the settlement or money judgment. Contingent fee arrangements are typical for plaintiff's counsel in automobile and accident litigation, medical malpractice and other personal injury cases, as well as in debt collection cases.

Courts set limits on the contingency fees a lawyer can receive from personal injury suits. Of course, lawyers and clients are free to negotiate contingency fees less than the standard one-third. Contingent fee arrangements in certain kinds of cases such as divorce, criminal cases, or child custody cases are prohibited.

How much can you expect to pay?

Rates for legal fees vary based on location, experience of the lawyer, and the nature of the matter. Believe it or not, rates may vary anywhere from $50 an hour to a $1,000 an hour or more.

In rural areas and small towns, lawyers tend to charge less, and fees in the range of $100 to $200 an hour for an experienced attorney are probably the norm. In major metropolitan areas, the norm is probably closer to $200 to $400 an hour. Lawyers with expertise in specialized areas may charge much more. Here are some national averages to help you get a general idea.

In addition, you can expect to be charged at an hourly rate for paralegals and other support staff. A good paralegal's time, for example, may be billed out at $50 to a $100 an hour or perhaps more. It would not be unusual for a legal secretary's time on things like document production to be billed out at perhaps $25 to $50 an hour.

What about expenses and court costs?

Little things add up. Carefully discuss with your lawyer anticipated miscellaneous costs so that you can estimate those costs up front and avoid any unpleasant surprises. Be prepared to scrutinize court costs, filing fees, secretarial time, and delivery charges.

How can you keep track of legal fees?

Get a fee agreement in writing. If an attorney is unwilling to put a fee agreement in writing, cross that attorney off your list. Some states require written fee agreements for most cases.

Ask your attorney to include in the fee agreement a provision for periodic, itemized billing. An itemized bill should list and describe all charges so that you can review them and compare them to your fee agreement.

You might want to arrange for a ceiling or limit on fees. You might also require your lawyer to get your approval before proceeding beyond a certain amount in legal costs. If you've hired an attorney to recover a $10,000 debt, you probably don't want to pay $8,000 in legal fees to resolve the matter.

What about free or low-cost legal services?

Depending upon your financial situation, you may be entitled to free legal services. If you are "indigent" within the meaning of any applicable state or federal guideline, you may be eligible for representation by a public defender in a federal or state criminal case. Low-income people may also qualify for free representation in landlord-tenant and divorce cases. If you need financial help in obtaining legal representation and think that you might qualify for indigent status, contact pro bono and legal services organizations in your area.

In many cases you don't have to be indigent to get a lawyer for free or at little cost. Some organizations offer their members prepaid legal plans. Often plans include a low or no-cost consultation, or low-cost services in uncontested divorces or simple wills matters. Check your liability insurance policy. Your policy may include coverage for attorney fees or require your insurance company to provide an attorney to defend you in a lawsuit.

Many unions provide free legal services to their members in union-related matters. If your case or claim is work-related, talk to your union representative.

Certain rights or advocacy groups might want to get involved in your case. For example, if you are challenging an unlawful attack on your civil liberties or right to free speech, an organization such as the American Civil Liberties Union may be interested in helping you.

What should you do if you are charged with a crime but can't afford a lawyer?

If you are indigent and if you are charged with a serious offense, you may be entitled to have an attorney appointed to represent you for free. The federal government and the states provide for the appointment of public defenders for indigent criminal defendants.

Public defenders are paid by the government and are required to represent clients as vigorously and competently as private attorneys. Public defenders often are specialists with many years of experience in the defense of criminal cases. Don't underestimate their expertise.

Most lawyers will tell you that the practice of law is a noble professional dedicated to the pursuit of truth and justice. But anyone looking to hire a lawyer must realize that practicing law is first of all a business. As a result, lawyers in private practice are going to charge what the market will bear in order to make a profit from their services. Understanding this and having a basic knowledge as to how lawyers charge for their services may help you to negotiate the best deal when you need to hire one.

How Lawyers Charge
Standard payment arrangements an attorney may suggest include hourly rates, flat fees, retainers or contingent fees.

Hourly rates are the most common arrangement. Here, the attorney gets paid an agreed-upon hourly rate for the hours he or she works on a client's case or matter until it's resolved.

Many lawyers are willing to charge competitive flat fees for certain types of legal work, some of which are listed below.

A retainer arrangement is usually a fee paid up front before legal representation commences.

A contingency fee is an arrangement where a lawyer is paid a portion of any recovery on a legal matter that he or she realizes for the benefit of the client. Contingency fees are usually, but not always, calculated as a percentage of the recovery. In most contingency fee arrangements, the client is not obligated to pay his or her lawyer unless there is a recovery.

Sometimes, lawyers and clients agree to arrangements that may blend one or more of these fee arrangements. For example, lawyers will sometimes be paid at a reduced hourly rate with the understanding that an additional contingency fee will be paid on any recovery.

Factors Impacting Lawyers' Fees
The fees for lawyers' services are based on many factors, including:

Time & Effort - Lawyers charge both for time they work on a case and the amount of effort the case requires
Geographical Location - Lawyers in urban and major metropolitan areas tend to charge a lot more than lawyers in rural areas or small towns
Outcome - On occasion, as in contingent fee matters, the fee may depend on the outcome of the case and the risk of no recovery
Advice - Legal opinion following research and case review
Difficulty of Case - The fee may be higher if the case is difficult or time consuming, or if there is a risk of no recovery
Experience - A more experienced lawyer is going to charge more
Prominence of Lawyer - If the lawyer is well known and experienced in a particular area of law, the lawyer's rates are usually higher than those of a lawyer who is not as prominent
Overhead - The costs associated with the lawyer's secretary, copies, books, legal research, and other items
Preferred Client Discount - Loyalty counts when it comes to working with a lawyer. So a lawyer will sometimes discount services if the client frequently uses his or her services.
Average Law Firm Billing Rates
Hourly Billing Rates for Attorneys

Most lawyers bill by the hour. Rates vary significantly, depending on any number of factors, including those listed above. Believe it or not, rates may vary anywhere from $50 an hour to a $1,000 an hour or more. Think of it in terms of how professional athletes are paid: all of them are paid pretty well, but some make millions more than others.

Hourly billing rates also depend on the lawyer's professional experience.

In addition, law offices may also charge for the time of other legal personnel. For example, hourly billing rates for senior paralegals and legal assistants vary.

Fee Ranges for Specific Legal Matters
Flat Rates for Specific Legal Matters

The following chart lists certain types of legal matters that lawyers will oftentimes bill at a flat rate: Type of Matter Business Partnership Agreement Standard Lease Power of Attorney Promissory Note Real Property Transfer Simple Marital Agreement Simple Will Tenant Eviction/Uncontested Unlawful Detainer Trademark Application Simple Incorporation Living Trust

Retainers

Retainer arrangements can take different forms:

In some cases, a retainer is a non-refundable fee paid for the privilege of retaining the lawyer, without regard to whether services are rendered. This type of arrangement is something you might find when someone retains a high profile lawyer.
In certain instances, the retainer may translate into a fixed fee paid on a periodic basis (for example, monthly or annually) to represent a client on routine matters. As an example, a corporation may pay a monthly retainer to a lawyer to attend board meetings and to provide advice on day-to-day legal issues that come up.
In other instances, a retainer may take on the form of a flat fee to represent a client on a specific matter, regardless of how much time or effort is involved in the representation. This type of arrangement is typical in criminal defense matters.
Another type of retainer is one where money is paid as an advance against future fees and costs, which may or may not be refundable if not all of it is used.
Contingency Fees

Contingency fees vary significantly depending on the type of case and how far the lawyer has to pursue the manner in order to secure a recovery. Typical fees might range from 20% if there is an early settlement to 50% if the lawyer is required to take a case to trial.

It's important to understand how out of pocket costs are treated under a contingency fee arrangement. Usually, the arrangement provides for the lawyer to recover his or her costs before the contingency fee percentage is calculated.

A law firm partner is going to bill at higher rates for time spent on your case. At the same time, though, having a partner work on your matter may actually be cheaper in the long run if it requires a high level of expertise, as it may take the partner less time to resolve a legal problem than it would an associate who has a lot less experience.

Lawyers typically bill for telephone calls. So make sure you have a good reason for calling your lawyer before you do so. It is sometimes a good idea to try talking to the lawyer's secretary or even a paralegal to see if you can resolve the issue at hand rather than talking directly to the lawyer.

Lawyers bill for travel time and costs. So if you're given the choice, plan meetings at your lawyer's office rather than insisting that he or she come to your office.

Your lawyer should provide you with an itemized bill that gives detailed information on how you are being charged. While every law firm does things differently, many of them charge not only for lawyer time but also for time spent by paralegals, legal secretaries and other support staff. You can use the information on an itemized bill to decide how to communicate most effectively with your lawyer's law firm without running up the legal bills.

The more time a lawyer has to spend on preparing a case, the more you are going to be charged. You may want to work on developing an effective working relationship with support personnel, with the goal of using your own time to help them work up the case and keep legal bills at a minimum. (This does not mean trying to do all the work yourself and then simply having the lawyer sign off on it.) You have to defer to the discretion of your lawyer, because it's sometimes easier for a lawyer to develop his or her own work product from scratch rather than trying to revise something that the client has already tried to do on his or her own.

Lawyers are bound by a code of ethics that governs their professional conduct. While the majority of lawyers adhere to these standards, most states have appointed a Disciplinary Counsel to investigate and act on violations when they occur.

Typically, Disciplinary Counsel only investigate grievances that are brought to their attention via a complaint. Complaints may concern ethical violations that clients feel the lawyer has committed. Other practicing lawyers can also file complaints. Common consumer complaints include:

1.Failure of the lawyer to communicate with the client
2.Lawyer neglects to return the client's documents
3.Failure of the lawyer to safeguard client property
4.Conflict of interest
5.Misrepresentation
6.Funds missing/fee disputes
7.Non-professional conduct in handling of cases
8.Filing a Complaint
If a problem occurs with a lawyer, the client must file a complaint to the counsel in the state in which the lawyer is licensed. Generally, the process for filing a complaint involves either filling out a form provided by the Bar Association in the particular state, or writing a detailed letter. The detailed letter should contain the lawyer's name, address, phone number, the circumstances under which the lawyer was hired and a description of the problem. Some states request additional documentation to be filed with the complaint.

In some states, a complaint may be filed by calling a hotline.

Complaint Review and Resolution
In most cases, a board of lawyers and non-lawyers reviews the complaint. If there might be some ethical violation, the lawyer in question is usually provided with a copy of the complaint and given 10-25 days (depending on the state), to respond to the complaint. In some states, clients are given a chance to comment on their lawyer's response and to request that an investigation be opened. The case will either be dismissed if no evidence of a violation is found, or it will remain open. If the violation is found to be minor, a phone call or letter to the lawyer can readily resolve the issue. A hearing will be set up if the violation(s) are of a serious nature, based on the review of the board.

Confidentiality
Most information is kept confidential until it's released to the lawyer in question. Some states don't allow anonymous cases because documentation is vital to the investigation. Disciplinary counsel needs the signature of the person filing the complaint on the complaint form or letter in case there is a need to testify in court. Some states allow anonymous complaints if the issues affect the general public, or if the board itself is able to bring the issue against the lawyer without further evidence from a client. If the state does allow anonymous complaints, a request for anonymity must be included in a detailed letter, on the form in which the complaint is filed or during the phone call.

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What are your lawyer's professional obligations?

All lawyers are subject to strict standards of professional responsibility. These standards are set forth in codes of conduct and Privileges, ethics, rules of professional conduct that are established by state bar associations. Although the rules will vary from state to state, here Here are some basic ethical and professional rules your lawyer must follow:

Your lawyer must represent you ethically, zealously and within the bounds of the law
Your lawyer must competently analyze legal issues and exercise knowledge of the law applicable to your case
He or she must communicate with you in a timely and effective manner
Your lawyer attorney owes you, as the client, a duty of loyalty. Your lawyer can't simultaneously represent you and another client with legal interests that conflict with yours. An example of an obvious conflict would be representation of both the landlord and the tenant in an eviction action.
For so long as he or she continues to represent you, your lawyer is required to follow your directions in handling your case unless those directions are illegal
Your lawyer must keep your personal property separate from his or her own property, and must keep your money in an escrow account. Any time you demand it, your lawyer must return your money or property.
Except in rare circumstances, your lawyer is required to keep client confidences confidential
Depending on the jurisdiction, lawyers may be prohibited from having personal relationships with their clients
Unless he or she first obtains your informed written consent, your lawyer is prohibited from taking on representation that is adverse to your interests.
Your attorney may have other responsibilities to you, depending on your case and the ethical rules that apply in your jurisdiction.

If a lawyer fails to abide by these rules, he or she can be disciplined by any bar association of which he or she is a member. It's possible the lawyer may even be disbarred for serious violations. Criminal prosecution is also a possibility. And a failure to comply with the rules may be the basis for a malpractice action.

Are your discussions with your lawyer confidential?

Yes. When you speak with an attorney about a legal matter, your communications with that attorney are privileged. This means that subject to some very limited exceptions, and unless you give permission, your attorney can't disclose any information you provide to a third party.

What responsibilities do you owe your lawyer?

First of all, look at the retainer agreement that you may have signed when your hired your lawyer. Typically, these agreements will set out certain duties and responsibilities of the client. By signing the agreement, you are contractually bound to abide by them. Such duties and responsibilities may include:

Being truthful with your lawyer
Being cooperative with and responsive to your lawyer
Being available to your lawyer and attending legal proceedings, as requested
Paying your legal bills in a timely manner
These duties and responsibilities are pretty common sense, so they may be implied even without a retainer agreement that expressly reduces them to writing. Regardless, a failure to abide by them may result in a lawyer deciding to terminate your client relationship.

A defendant's "right to counsel" relies on both the Fifth and Sixth Amendments to the United States Constitution (and corollary state provisions). Both of these rights apply only to criminal - not civil proceedings, and which constitutional right is at play depends on the stage of the criminal proceedings. Although the Fifth Amendment right to counsel applies to broader stages, the Sixth Amendment right provides broader protection. Although suspects can choose to waive one or both of these rights, it is rarely advisable to do so.

The Fifth Amendment Implied Right to Counsel
Although the Fifth Amendment does not explicitly guarantee a right to counsel, the United States Supreme Court declared in Miranda v. Arizona that the Fifth Amendment's privilege against self-incrimination includes an implied right to counsel once a suspect is subject to "custodial interrogation" - meaning that the suspect is questioned by police in a restricted environment. Thus, once a suspect exercises the Miranda Right to Counsel, the State is required to "make counsel available" for the suspect, meaning that the suspect can not be questioned again unless an attorney who represents the suspect is present.

If you choose to waive your Miranda Right to Counsel, the police can question you, for example, at the police station without an attorney present to represent your interests. Although you may not feel like you need an attorney present, if you have waived your Miranda Right to Counsel, any incriminating statements that are made by you may be used as:

Probable cause to support further investigation, including searches
Evidence at trial against you
If you waived your Miranda Right to Counsel and the police or prosecution is know trying to use your statements against you, you can challenge that use by claiming that the waiver was not knowing and voluntary because, for example, you didn't understand the consequences of waiving the right.

The Sixth Amendment Right to Counsel
The Sixth Amendment to the United States Constitution provides criminal defendants with the right to rely on the assistance of counsel after formal charges are initiated. Criminal proceedings are not "initiated" until the government issues an indictment or information, or until the defendant's arraignment or preliminary hearing. In other words, the Sixth Amendment right to counsel does not apply merely because a suspect is under arrest unless exceptional circumstances are present. The Sixth Amendment right does not apply until the suspect becomes a defendant.

Once criminal proceedings are initiated, the Sixth Amendment right to counsel applies to all stages, from initial appearance to appeal. However, in order for the right to apply, a defendant must request counsel by telling the governmental authority who is handling the case at the time (be it a police officer or prosecutor), that the defendant requests the assistance of counsel. Moreover, if a criminal defendant can not afford to hire an attorney, both federal and state courts are constitutionally required to appoint counsel for the defendant.

Like the Miranda Right to Counsel, a defendant's waiver of the Sixth Amendment right to counsel must be voluntary, knowing, and intelligent. Thus, if the State tries to rely on statements made by a suspect when counsel was not there, the State must show that the suspect:

Intentionally waived the right to counsel - by clearly communicating that waiver
Clearly understood the nature of the right and consequences of abandoning it
Even if a defendant has nothing to hide, a criminal defense attorney will help speed up the process and will represent the defendant's interests throughout the proceedings. In most situations, if you waive your right to counsel, you essentially help the police and the prosecution engage in tactics that could easily result in a stronger case against you.

If a suspect waived his right to counsel and the State then tries to introduce statements made by the accused, a defendant can challenge the waiver by showing that it was not voluntarily, knowingly, or intelligently made. If the challenge is successful, the evidence can be excluded from trial.

The Sixth Amendment Right to Counsel Involving Juvenile Defendants
The Sixth Amendment right to counsel applies to juveniles accused of criminal offenses. However, several states prevent or severely limit a juvenile's ability to waive their Sixth Amendment right to counsel. Illinois, Iowa, and Texas completely prevent juveniles from waiving their right to counsel. Arizona, Georgia, Indiana, Louisiana, Maryland, Minnesota, Montana, New Jersey, New Mexico, Virginia, and West Virginia have specific requirements for Sixth Amendment right to counsel waivers by juveniles. Several other states require that juveniles consult with an attorney before waiving their Sixth Amendment right to counsel.

 Can you fire your lawyer?

You're the boss. If at any time you're unhappy with your lawyer's services, you can fire your lawyer. You can fire a lawyer regardless of your fee agreement and even if your case is pending in court. Your attorney is entitled to payment for services rendered up to the time of dismissal, in accordance with your fee agreement.
Be aware that firing a lawyer after a suit has been filed usually requires the court's permission. If the case is close to trial, the court may be reluctant to grant permission for dismissal if it will delay the proceedings unless the court finds you have good cause under the circumstances to discharge your attorney.

Keep in mind that under the law of some states, the attorney you fired may be allowed to keep your file until you've paid your bill. When you hire a lawyer, ask him or her about the applicable law in your state.

 What if your lawyer isn't answering your phone calls?

 Ignoring phone calls is rude and unprofessional. Besides, your attorney is obligated to communicate with you and keep you advised of the progress of your case. The frequency of that communication and the form it takes will vary according to your case.
Before you decide that your attorney isn't communicating adequately with you, ask yourself if your expectations are reasonable. Expecting your attorney to talk to you for an hour every week about your case will cost you money if you're being billed at an hourly rate. Regular phone calls are also unnecessary if your attorney has no news to report. Remember, an attorney represents many clients simultaneously, and must allocate her time to keep legal costs down without compromising work quality.

If you have information or questions for your attorney, it's a good idea to write a short letter and request a written response. Still no answer? Follow up with a phone call. If your lawyer fails to respond and continues to neglect your reasonable requests for information, it could be time for you to fire him. At that point you might also want to contact the appropriate lawyer disciplinary authorities.

Don't let things go for an unreasonable period of time. The persistent refusal of an attorney to respond to your communications over a significant period of time suggests something is wrong. You may need another attorney to move forward with your matter.

 What should you do if you think your lawyer has overcharged you?

Review your fee agreement and the bills your attorney has sent you. All charges should be consistent with your agreement. If you have questions about particular charges, ask your lawyer. Frequently, charges make more sense after a brief explanation.
If you can't resolve your questions regarding fees and charges with your lawyer you may want to have your bill reviewed by an attorney organization that will evaluate it for fairness. Some states offer fee arbitration services for clients.

Finally, nothing stops you from hiring another lawyer to resolve the matter, possibly through additional litigation.

 What should you do if you think your lawyer has acted unethically?

 Lawyers who have acted unethically face a variety of sanctions from censure and suspension, to disbarment from legal practice. If you feel that your lawyer has acted improperly or unethically, contact the Lawyer Disciplinary Agency in your state and file a complaint.
Keep in mind that if your attorney used your money in an unethical way, a disciplinary action will not get you your money back. These proceedings punish unethical lawyers but do not necessarily provide a financial remedy to a wronged client.

 What if you lost a case that your lawyer said was a winner?

 Be wary of an attorney who says that a case can't be lost. Smart, experienced, honest lawyers know better. No lawsuit is a sure winner for either side. Remember that your attorney is required to be competent, loyal, honest, and to represent you zealously within the boundaries of the law. Meeting all these standards, he or she still might lose. Even great lawyers lose cases.
However, it is possible your attorney lost or bungled your case because he or she failed to satisfy or follow the procedures or laws that applied in that particular action. In an extreme case, you may have a legitimate malpractice claim. At this point the last thing you might wish to do is hire another attorney. However, you'll need a lawyer to bring a malpractice case against another lawyer. Look in the lawyers.com directory for legal malpractice lawyers in your area.

 What is legal malpractice?

 Legal malpractice is the failure of a lawyer to render competent professional service to a client. If the client is damaged as a result of the failure, he or she may have a claim against the lawyer for legal malpractice. There are three major theories of liability:
Negligence
Breach of fiduciary duty
Breach of contract
The most common theory of liability used in malpractice cases is negligence.

 What is negligence?

 An attorney owes a duty to the client to perform all work relevant to a case with the standard of care expected of the "average" attorney in the same or a similar situation. If the attorney fails to perform at the level of an average attorney, there may be negligence and liability for legal malpractice. If an attorney presents himself out to be an expert in an area of law, the standard of care is that of the "ordinary" expert in the field.

 What is "breach of fiduciary duty"?

 An attorney is to act in the best interests of his client. When an attorney puts his own interests or those of a third party before that of the client, a lawyer may be breaching his "fiduciary duty" to the client.

 What is "breach of contract"?

A retainer agreement is a contract that defines the relationship between the lawyer and client. The agreement, like all contracts, lists the role, expectations, and obligations of each party. A breach of contract occurs when a party to the agreement fails to uphold the agreement.

What must be proven to win a legal malpractice case?

To win a legal malpractice case, you must prove four points:
Your attorney owed you a duty to act properly
Your attorney breached that duty by acting negligently, not following through with the agreement or possibly making mistakes which an average attorney would not have made
Your attorney's behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) had the attorney acted properly
You suffered a financial loss as a result of the behavior

 My lawyer isn't working with me, not even returning phone calls. What can I do?

 A lawyer not communicating is the most often-cited complaint being made to state bar associations. Often times, the failure to communicate isn't an indication of the level of time or work an attorney is actually doing on a case, but is symptomatic of poor organizational skills.
Send your attorney a note letting him or her know that you've been trying to reach the office and speak with him or her, and would greatly appreciate a return call as well as a written update and specific responses to your questions. The letter creates a paper trail of communication with your attorney. The longer the attorney is unresponsive, especially after sending him or her a letter, the stronger a case for malpractice may be.

 Is my attorney able to settle my case without my consent?

 Possibly. Review the retainer agreement you signed with your attorney. It's possible that the retainer agreement allows your attorney to settle a case without your consent and to sign the settlement and release agreement on your behalf.
If your attorney settled the case without your permission, and you have not yet executed the settlement and release agreement, and you're unhappy with the settlement, you should tell your attorney that you do not wish to proceed with the settlement. If a check has previously been forwarded to your attorney, it is a simple matter to return the funds.

How do I handle a check from my lawyer bouncing?

 If your attorney sent you a settlement check for a claim that you were making and it was from the attorney's "trust" account, this is very unsettling. An attorneys trust account must never be overdrawn. If the funds were from the attorney's general account, not the client trust account, it's not as serious a problem. I would suggest you call your attorney and see if this was just a simple misunderstanding or perhaps a bank error.

How can I challenge my attorney's expense reports?

Your attorney is presumably deducting the expenses from the settlement or the money that you are receiving, so ask for documentation. Your attorney should be able to provide you with copies of invoices, bills and other receipts to demonstrate that these payments were made on your behalf. If you don't receive the documentation, don't permit them to be deducted from your settlement.

Can I ask my lawyer for a copy of the settlement check?

You have an absolute right as the client to see a copy of the settlement check, as well as to review a copy of the settlement breakdown sheet before the check is deposited. Typically, the insurance company check has both your and your attorney's name on it and, therefore, you would typically have to endorse the check before it could be placed in your attorney's client trust account. Ask your attorney to provide you with a copy of the actual settlement check forwarded to him by the insurance company, as well as a copy of all checks written totaling the full amount of the settlement.

How do I find out if a lawyer has been disciplined?

Contact the State Bar Association of your state and ask what information they maintain on the attorney in question. In some states, they will not tell you if there are any "grievances", but they will let you know whether there has been any public record of discipline or other action taken by the Bar. You might also try asking the attorney directly.

How do I get a new lawyer?

The attorney-client contract commonly referred to as the "retainer agreement" doesn't prevent you from replacing your current attorney with some other attorney. If you consult with a new attorney and decide to retain the new attorney, you need never personally contact your prior counsel.
Typically, the new lawyer will have you explain the reasons for your wishing to change counsel. It is important for all lawyers to find out why it is you're seeking to make a change. After determining that the new attorney meets your criteria and the attorney is willing to take on the case, a discussion relating to the transition of your file to the new office would take place.

It is generally unnecessary for you to contact your prior lawyer and explain that you going to be making the change, although you can if you wish. Instead, the new attorney would make all the necessary arrangements with your current attorney to have your file transferred to his or her office. A letter is generally sent specifically stating that the former attorney should make no attempt to contact you personally, but simply forward the documents.

For many types of claims, your first attorney will receive a fee for services rendered once the case is resolved, either for the actual time put in by your attorney or the "value" of the attorney services to the overall result obtained. This will vary depending upon the state in which you retained your lawyer.