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Attorney Question

Attorney Question

Old May 1st 2006, 4:33 am
  #1  
JoeBurmeister
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Default Attorney Question

My immigration attorney quit her practice last fall and moved to
another state. I had paid her a large sum of money (over $2000) to
represent me at my removal proceedings trial (I retained her just
before my 1st 'master calendar' court hearing before an immigration
judge in 2003 but after I filed, on my own, the AOS petition based on
marriage to a USC).I was put on the 'Matter of Garcia' calendar by the
immigration judge. This simply means I appear before the judge once a
year, and the judge continues my case until the following year, or
until my I-130 is approved. So essentially my attorney had appeared in
court for about 5 minutes for the past 3 three years to request
continuance. Absolutely NOTHING has happened to my case. I am STILL in
removal proceeding. My I-130 has yet to be approved.

Now I am in the situation where I must find another immigration
attorney to represent me in my upcoming annual hearing before the
immigration judge and pay another large sum of money to retain that
attorney.

My question is - am I entitled to receive a refund (all or partial) for
the attorney fees I paid to my former attorney. She refuses to give a
refund since she claims she had spend a lot of my time on my case. I
don't see how she can say that as I filed the AOS petition, and my case
is in limbo until the USCIS approves my I-130 at which time I can
request a termination of removal proceedings. Back in 2003 the attorney
and I signed a retainer agreement. Am I not entitled to a refund
because she terminated the agreement (breach of contract?).

She will (or has already) be filing a Motion for Attorney Withdrawal to
both the Immigration Court and the Chief Counsel's Office.

Also, I am thinking of going it alone (i.e. no attorney) and appear
before the immigration judge at my upcoming court hearing and request a
continuance if my I-130 has yet to be processed (most likely scenario)
. If by some miracle, my I-130 is approved (unlikely as the USCIS would
have notified me in writing before the court hearing), I will file a
motion to termination the removal proceedings against me. Do I really
need a high proceed attorney to request continuance?? If and when my
I-130 is approved, I will most likely seek out a new attorney to walk
me through the termination of proceedings.

Thanks,

Joe
 
Old May 1st 2006, 11:31 am
  #2  
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Default Re: Attorney Question

Originally Posted by JoeBurmeister
My immigration attorney quit her practice last fall and moved to
another state. I had paid her a large sum of money (over $2000) to
represent me at my removal proceedings trial (I retained her just
before my 1st 'master calendar' court hearing before an immigration
judge in 2003 but after I filed, on my own, the AOS petition based on
marriage to a USC).I was put on the 'Matter of Garcia' calendar by the
immigration judge. This simply means I appear before the judge once a
year, and the judge continues my case until the following year, or
until my I-130 is approved. So essentially my attorney had appeared in
court for about 5 minutes for the past 3 three years to request
continuance. Absolutely NOTHING has happened to my case. I am STILL in
removal proceeding. My I-130 has yet to be approved.

Now I am in the situation where I must find another immigration
attorney to represent me in my upcoming annual hearing before the
immigration judge and pay another large sum of money to retain that
attorney.

My question is - am I entitled to receive a refund (all or partial) for
the attorney fees I paid to my former attorney. She refuses to give a
refund since she claims she had spend a lot of my time on my case. I
don't see how she can say that as I filed the AOS petition, and my case
is in limbo until the USCIS approves my I-130 at which time I can
request a termination of removal proceedings. Back in 2003 the attorney
and I signed a retainer agreement. Am I not entitled to a refund
because she terminated the agreement (breach of contract?).

She will (or has already) be filing a Motion for Attorney Withdrawal to
both the Immigration Court and the Chief Counsel's Office.

Also, I am thinking of going it alone (i.e. no attorney) and appear
before the immigration judge at my upcoming court hearing and request a
continuance if my I-130 has yet to be processed (most likely scenario)
. If by some miracle, my I-130 is approved (unlikely as the USCIS would
have notified me in writing before the court hearing), I will file a
motion to termination the removal proceedings against me. Do I really
need a high proceed attorney to request continuance?? If and when my
I-130 is approved, I will most likely seek out a new attorney to walk
me through the termination of proceedings.

Thanks,

Joe
Hi:

You don't bother to give the terms of your retainer agreement. You state both what has happened and that NOTHING has happened.

BTW, there is no such thing as a 'five minute appearance' unless you limit it to the time actually before the Immigration Judge. In fact, those 'five minute appearances' eat up an average of three hours each of attorney time in my experience.

On my calendar today I happen to have both a merits hearing and a master. That master is a followup to a merits which was cancelled due to the IJ illness on the prior merits day. It will be a 'five minute appearance' which will add a MINIMUM of 90 minutes to time at court today [but at least the travel time is split].
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Old May 1st 2006, 4:07 pm
  #3  
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scrubbedexpat099 is an unknown quantity at this point
Default Re: Attorney Question

In my business, retainers were annual payments, I sort of assumed the US legal system worked the same way.

But presumably the period could be longer or for a specific application/process, what did you agreement say?
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Old May 2nd 2006, 3:19 am
  #4  
JoeBurmeister
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Default Re: Attorney Question

NOTHING has happened that has moved my case forward. I am no closer to
adjustment then I was when I first filed my AOS petition back in
January of 2003. In my opinion the attorney has done very little then
the minimum required (represent me at my once-a-year-hearing before the
IJ - and even that is a waste of time...both hers and mine, as the
court can't do anything until the USCIS has adjuciated my I-130). I had
visited the charleston and atlanta field offices several time hoping
to expedite things along. I even wrote to my congressman.

The retainer agreement is a 2-page document mostly dealing with the
payment of her legal fees, or rather the consequences of not paying her
fees. The opening sentence states..."I (the client) retains the Law
Office of (the attorney) to represent Client with respect to Removal
Proceedings (Adjustment of Status Relief). The Law Office fee for this
service will be $2500.00)". It goes on to say "Client understands that,
regardless of the outcome of this matter, Client is responsible for the
payment of any and all legal fees, as well as any and all expenses,
including but not limited to......blah, blah, blah, .......The Law
Office, makes no gurantees regarding the successful completion of any
application filed with the DOL and its agents, or INS and its agents,
etc...blah, blah, blah, .....If the Client ends the attorney-client
relationship prior to the conclusion of the immigration matter or prior
to paying the agreed upon legal fee, attorney fees will be billed at a
rate of $250.00 per hour and Client will be provided with an itemized
billing statement". There is also a statement about the Withdrawl of
Representation by the Law Office in the event that payment are not
made, and that such an action does not relieve the Client of any
financial obligations for legal work already performed on the Client's
behalf. So there you have it. The retainer says nothing about the
attorney ending the client-attorney relationship prior to the
conclusion of the immigration matter.

As for the time in court, yes you are correct. We usually spend 2-3
hours waiting for my case to be called. When my name is called, its
basically a 5-minute appearance before the judge.

Had I known that she was going to jump ship half way through the
proceedings, I would have never retained her as in the end it cost me
more as I have to pay attorney fees for not one but two seperate
lawyers. Do you not feel the client is getting a raw deal here?
 
Old May 2nd 2006, 3:09 pm
  #5  
Martijn Vels
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Default Re: Attorney Question

Hi Joe,

While I am no lawyer or anything, I think it's a very clear cut case.
Your contract is very clear that your attorney will represent you for
the entirety of this case, regardless of the outcome (positive or
negative). I think she could only legally bail out in case you would
need to go into appeal proceedings, but other than that, she has
obliged herself to represent you untill the conclusion of the case.

I am not sure about the exact nature of the contract, but I understand
she accepted this case on a fixed fee basis, right? A fixed fee is
exactly what it is, a 'fixed fee' for your attorney to complete a legal
task, in this case represent you in the ongoing court case untill it's
completion. Legally, your payment is an advance payment for her
services, and if she defaults before the completion of her legal task,
you are entitled a full refund of your payment as it isn't legally
hers. Contract wise and legally, you are to pay her at the completion
of her services, the fact that your fixed fee is payed in advance (as
to enable her to proceed with your case, etc) has nothing to do with
the fact that she is only entitled to it after completion of her legal
tasks.

It would contact the American Bar Association. I'm sure she doesn't
want a bad rep sheet with them, and they can give a binding (or non
binding) advice
 
Old May 2nd 2006, 3:27 pm
  #6  
JEff
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Default Re: Attorney Question

Joe,

I think there's a lesson here for us all. Maybe we need an attorney to
review our agreements with other attorneies before we sign them.

Regards, JEff

[email protected] wrote:
    > ...
    > The retainer agreement is a 2-page document mostly dealing with the
    > payment of her legal fees, or rather the consequences of not paying her
    > fees. .....If the Client ends the attorney-client
    > relationship prior to the conclusion of the immigration matter or prior
    > to paying the agreed upon legal fee, attorney fees will be billed at a
    > rate of $250.00 per hour and Client will be provided with an itemized
    > billing statement". ..... The retainer says nothing about the
    > attorney ending the client-attorney relationship prior to the
    > conclusion of the immigration matter.
    >
    > ....
 
Old May 2nd 2006, 3:45 pm
  #7  
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Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: Attorney Question

Originally Posted by Martijn Vels
Hi Joe,

While I am no lawyer or anything, I think it's a very clear cut case.
Hi:

The OP's questions are well taken. However, this is NOT a "clear cut" area at all. Law practices are wound up all the time -- most often by death. [BTW, the one time I was on the receiving end of termination of professional practice by death was with the orthodonture for one of my daughters when she was a child].

If OP's former attorney was to post a "what should I do?" inquiry on an attorney chat group, the answers would go all over the place.

The OP's statement are pregnant with the Latin term "quantum meriut."

Also, this is a matter of STATE law and the rules of legal ethics can vary by practice from state to state. Many years ago I was substituted in on an immigration case where the client had moved from New York to California. When I sent my substitution and request to the New York attorney, I got the response "No file until he pays the fees still owing." Under California PRC such a response is a clear landmark on the Road to Perdition. I contacted the New York PR enforcment people and get the response -- "What are you complaining about? Haven't you ever heard of a 'charging lien'?"

I'm not taking a position either way on OP's inquiries other than that it is a fair inquiry.

If the attorney is admitted in SC, he might want to contact the South Carolina PR enforcement people. If admitted in another state, contact them.
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Old May 2nd 2006, 4:00 pm
  #8  
Capt. Tuttle
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Default Re: Attorney Question

JEff wrote:
    > Joe,
    >
    > I think there's a lesson here for us all. Maybe we need an attorney to
    > review our agreements with other attorneies before we sign them.
    >
    > Regards, JEff
    >

I agree with Jeff. You now need a contract attorney to see if you have
standing for a case against your immigration attorney.
I'm interested to see what, if anything, Mr. F. has to say about this.
 

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