Mark went to Attorney Scrimsawyer who told him Mark he would handle Mark's divorce for a flat fee of $3,000. Mark expected the divorce to go very easily and thought that was a bit much but Attorney Scrimsawyer was very confident, expressed himself well. Mark was a nervous wreck and very worried because the documents Mark was served with stated that Mark only had 20 days to answer them and appear before the court and he had been served a week ago but had to work all week.
Mark told Attorney Scrimsawyer that he wanted to call one or two more attorneys to do some price shopping. Attorney Scrimsawyer was offended and said Mark wouldn't find a lower price so if he wanted to hire him then Mark had to engage his services with a check for $3,000 before he left. After Mark left the building Attorney Scrimsawyer said he would only do the divorce for a usual rate of $250 per hour and his usual $3,500.00 retainer fee to bill his time and expenses off. Mark was nervous so he wrote out a check to Attorney Scrimsawyer for $3,000 and the attorney gave him a questionnaire to start filling out for the file and asked Mark for the papers he had been served with so he could take care of them for him.
To make a long story short, the case was a nightmare. Mark's wife had a lawyer on her side of the family who kept the case going on and on and on. They went through discovery, depositions, mediation, and every aspect of the case imaginable. Finally Attorney Scrimsawyer got fed up and demanded that Mark give him another $3,000 for all the time and work he had spent. Mark refused.
Attorney Scrimsawyer tried to withdraw from the case but the judge denied the motion. Attorney Scrimsawyer was angry about the denial but ended up going through the trial doing far from his best job. In the end, Mark's wife got 75% of all the marital assets and Mark got stuck with all the debt. There was no reason for the bad result except poor presentation of Mark's case by Attorney Scrimsawyer.
Once the divorce was completed and the Final Judgment was entered, Attorney Scrimsawyer filed a lawsuit against Mark for $43,750 which was the amount that he claimed Mark owed him for representing him in the divorce.
Mark was sick of attorneys because of his divorce. So Mark didn't hire an attorney for the lawsuit. Mark thought that it was too simple and he could handle the defense on his own.
Mark filed a document claiming he didn't owe any of the money and that Attorney Scrimsawyer had agreed to do his entire divorce for $3,000.
MARK: When they went to court Mark testified that Attorney Scrimsawyer verbally agreed to perform his entire divorce for a fee of $3,000. On cross-examination Attorney Scrimsawyer asked Mark to produce the agreement. Mark admitted it was verbal. Mark was asked for a letter confirming that he was even offered $3,000 as the fee. Mark admitted there wasn't any. Mark was asked if there was an email showing the $3,000 offer. Again, mark said that it was all verbal. Mark was asked if he had a copy of the canceled check. Mark produced the canceled check and was very proud of himself for bringing it. Mark was asked what it said in the Memo Line? Mark had to admit that the Memo line was blank. Mark was asked who else was present during this "alleged agreement?" Mark said that it was just himself and Attorney Scrimsawyer.
Attorney Scrimsawyer asked if he remembered mentioning his regular rate to Mark. Mark answered, "Yes it was $250 per hour and a $3,500 retainer." Mark then left the witness stand.
Attorney Scrimsawyer did only one thing first. He pulled out Mark's divorce file a slammed each banker's box on the table to show the heaviness of the contents of each box. In total there were four (4) full boxes. For his own testimony Attorney Scrimsawyer said only this.
ATTORNEY SCRIMSAWYER: "Your Honor, this is Mark's file. I have worked on this case for ONE HUNDRED EIGHTY SEVEN HOURS which took 1 year and 7 months. I have been paid a total of $3,000. Nowhere in this file will you find even the mention of any agreement by either of us that I would do ALL of THIS for only $3,000. If the court thinks I did then the court has to believe that I am the biggest idiot on the planet. I just want fair compensation for what I've done and not a penny more. Mark told you my rate so I am asking you to award me the $43,750 that I am owed an not a penny more. I just want to be paid for my hard work Judge."
The judge went into chambers for about 20 minutes and came back out.
JUDGE: I find that there is no credible evidence strong enough to convince me that Attorney Scrimsawyer agreed to handle this entire case for $3,000 and that if I were to simply believe Mark that he would be unjustly enriched at this Attorney's expense. Therefore, I find in favor of Attorney Scrimsawyer and judgment shall issue in the amount of $43,750 as requested plus statutory interest and costs from the date of the initial $3,000 payment until the judgment amount is paid in full.
Mark was shocked and now he was stuck with paying the attorney $43,750 simply because he did not have a signed agreement with Attorney Scrimsawyer saying exactly what the lawyer would do and exactly how much Mark would pay.
Sadly, Attorney Scrimsawyer simply made a poor bargain and then wouldn't abide by it and when the Attorney came before the court he never lied but cleverly used his lawyer's skill to have enough information revealed that it appeared that he had not entered into the agreement. Hopefully this is a rare example of what can happen.
Yet I find it important for the client's sake to put together the fee agreement so the client will know exactly what they are getting from me when they pay me for my services. Client's should be treated fairly and with respect, especially in the area of divorce and family law where emotions run high and it would be far too easy to take advantage of already vulnerable people.
What else can happen? How about a $43,750 lien on your house? How about an Order from the court allowing this attorney to remove those monies from your bank accounts or retirement investments?
A word to the wise. Have a Fee Agreement signed by you and by the lawyer drawn up, and make sure that it really does say what the divorce attorney said he or she was going to do for you. Without that agreement, you could find yourself like a sheep being led to the slaughter.
All my Best to All Who Go Before the Rhode Island Family Court,
I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."