Forfeiture of an asset transferred to an attorney as fees for legal services may be pursued where there are reasonable grounds to believe the transfer was a fraudulent or sham transaction designed to shield from forfeiture assets which otherwise are forfeitable.
Full Answer
Forfeiture of an asset transferred to an attorney as payment for legal fees for representation in a civil matter may be pursued, notwithstanding the fact that the asset may have been transferred for legitimate services actually rendered, when there are reasonable grounds to believe that the attorney had reasonable cause to know that the asset was subject to forfeiture at the time of …
Oct 17, 2018 · The California Supreme Court finds that an undisclosed conflict renders a retainer fee agreement unenforceable, but leaves open quantum meruit recovery. On August 30, 2018, the California Supreme Court issued its much-awaited opinion in the case of Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., No. S232946 (Cal. Aug. 30, 2018).
professional services. More generally, fees are frequently found to be unreasonable when the lawyer does not perform competent work, or neglects a matter, but nevertheless seeks to be paid the full fee for which he or she has contracted. See, e.g., Attorney Grievance Comm'n of Maryland v. Garrett, 427 Md. 209, 224, 46 A.3d 1169, 1178 (2012 ...
The Price of Withdrawal: Contingency fee attorney may forfeit certain fees. The decision to withdrawal from representing a client is never an easy one, but for contingency fee attorneys, the decision can mean forfeiting fees. This is true even if the attorney believes the grounds for withdrawal are mandatory under the Rules of Professional ...
Most frequently, the client agrees to a security or an advanced payment retainer where payment for services is drawn from the monies held in trust. Here's the kicker—only the true retainer is non-refundable. Unearned funds from either a security or advanced payment retainer must be refunded at the end of the work.Feb 22, 2018
In the legal realm, the "lodestar method" refers to a method of computing attorney's fees whereby a trial court must multiply the number of hours reasonably spent by trial counsel by a reasonable hourly rate.
9 Taboo Sayings You Should Never Tell Your LawyerI forgot I had an appointment. ... I didn't bring the documents related to my case. ... I have already done some of the work for you. ... My case will be easy money for you. ... I have already spoken with 5 other lawyers. ... Other lawyers don't have my best interests at heart.More items...•Mar 17, 2021
Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...
An hourly rate case is when your lawyer will charge you for each hour (or portion of an hour) that they work on your case. For example, if the lawyer's fee is $100 per hour and the lawyer works 5 hours, the fee will be $500. This is the most typical fee arrangement.Jan 28, 2022
Legal Definition of lodestar : the amount obtained by multiplying the reasonable amount of hours spent by an attorney working on a case by the reasonable hourly billing rate for purposes of calculating an award of attorney's fees.
There's bad news your attorney doesn't want to deliver. If your attorney is not experienced or efficient, they may have missed a deadline or made another mistake and aren't willing to confess their error. There could also be some bad news that is entirely outside of the attorney's control.Mar 29, 2021
Signs of a Bad LawyerBad Communicators. Communication is normal to have questions about your case. ... Not Upfront and Honest About Billing. Your attorney needs to make money, and billing for their services is how they earn a living. ... Not Confident. ... Unprofessional. ... Not Empathetic or Compassionate to Your Needs. ... Disrespectful.Aug 19, 2020
Once a month is a good rule of thumb if things are slow, but if you are preparing for trial or in my case an administrative benefits hearing, the contact with you and your attorney should be more frequent and specifically scheduled.
Perhaps the most common kinds of complaints against lawyers involve delay or neglect. This doesn't mean that occasionally you've had to wait for a phone call to be returned. It means there has been a pattern of the lawyer's failing to respond or to take action over a period of months.
Ethics violations such as discrimination, safety violations, poor working conditions and releasing proprietary information are other examples. Situations such as bribery, forgery and theft, while certainly ethically improper, cross over into criminal activity and are often dealt with outside the company.Aug 14, 2015
Common ethical abuse examples include discrimination, harassment, improper use of company computers and unethical leadership. An ethical company code is important, but only if the leaders can live up to it.
Federal forfeiture laws are premised on the notion that tainted assets belong to the government as of the date of the underlying offense. In order to protect attorney fees against government forfeiture, an attorney must be able to establish that they are in fact “a bona fide purchaser”.
Generally, precedent in the context of forfeiture has held that while a defendant has a constitutionally-protected right to an attorney and an attorney of course has a right to be compensated for their services, a defendant does not necessarily have a right to transfer an asset to their attorney as payment when the asset may be subject to forfeiture by the government.
Relevant considerations include the gravity and timing of the ethical violation, its willfulness, its effect on the value of a lawyer’s work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies.
S232946 (Cal. Aug. 30, 2018). The Sheppard Mullin opinion is the most impactful opinion the California Supreme Court has issued on the practice of law in years. This is not just a California issue. The opinion has significant ramifications for attorneys everywhere.
An attorney or law firm that knowingly withholds material information about a conflict has not earned the confidence and trust the rule is designed to protect. Applying this standard, the court held that the conflict waiver was inadequate.
After the disqualification, Sheppard Mullin sued J-M for $1.2 million in unpaid legal fees. J-M countersued, seeking disgorgement of nearly $2 million in fees it had already paid. Sheppard Mullin petitioned to compel arbitration, and the arbitrator found in Sheppard Mullin’s favor. The superior court confirmed the award.
After Sheppard Mullin had performed 10,000 hours of work for J-M in the qui tam action, South Tahoe discovered the conflict and successfully moved to disqualify Sheppard Mullin. During that same time, Sheppard Mullin performed 12 hours of unrelated employment counseling for South Tahoe. After the disqualification, ...
The court reaffirmed prior precedent holding that a contract or transaction with attorneys may be declared unenforceable for violating the California Rules of Professional Conduct . The determination of whether the entire agreement is an unenforceable illegal contract rests with the court and not the arbitrator.
J-M Manufacturing Co. retained Sheppard, Mullin, Richter & Hampton, LLP, to represent the company in a federal qui tam action involving several public entity intervenors, including the South Tahoe Public Utility District. Prior to being retained, Sheppard Mullin ran a conflict check and discovered that another Sheppard Mullin attorney did a small amount of employment counseling for South Tahoe. Sheppard Mullin’s retainer agreements with J-M and South Tahoe contained a blanket waiver of all current and future conflicts. As a result, Sheppard Mullin concluded it could concurrently represent both clients and, as it will later regret, did not disclose the conflict to either J-M or South Tahoe. After Sheppard Mullin had performed 10,000 hours of work for J-M in the qui tam action, South Tahoe discovered the conflict and successfully moved to disqualify Sheppard Mullin. During that same time, Sheppard Mullin performed 12 hours of unrelated employment counseling for South Tahoe.
Fee forfeiture can arise in many contexts: as a basis for a client’s refusal to pay a lawyer fired for cause; as a ground for refusing to allow outstanding fees to offset a malpractice judgment; as a defense to a lawyer’s claim for fees; and, most commonly, as a remedy in a client’s lawsuit for breach of fiduciary duty.
As the Campagnola limitation makes clear, the core principles underlying fee forfeiture are not always easy to apply. We will address two areas in New York law which remains cloudy.
Fee forfeiture arises in many contexts: as a basis for a client’s refusal to pay a lawyer fired for cause; as a ground for refusing to allow outstanding fees to offset a malpractice judgment; as a defense to a lawyer’s claim for fees; and, most commonly, as a remedy in a client’s lawsuit for breach of fiduciary duty. However it arises, fee forfeiture is solidly grounded in principles of agency law. As the New York Court of Appeals stated in 1886: “An agent is held to uberrima fides in his dealings with his principal, and if he acts adversely to his employer in any part of the transaction … it amounts to such a fraud upon the principal, as to forfeit any rights to compensation for services.” Murray v. Beard, 102 N.Y. 505, 508 (1886); see Restatement (Second) of Agency §469 (1958) (an agent who breaches his duty “is not entitled to compensation even for properly performed services for which no compensation is apportioned”).
In the malpractice area, the Court of Appeals has ruled that a lawyer who commits malpractice “that results in the client’s loss of recovery upon a valid claim” forfeits any right to offset her unpaid contingent compensation against the award. Campagnola, 76 N.Y.2d at 44, 556 N.Y.S.2d at 242. “The attorney’s malpractice,” the Court held, “constitutes a failure to honor faithfully the fidelity owed to the client and to discharge competently the responsibilities flowing from the engagement.” Id. But the Campagnola court was careful to limit its ruling to a situation where the attorneys “performed absolutely no services in connection with the disputed claim, and thus, even if discharged by plaintiff without cause, would not have been entitled to any quantum meruit compensation.” Id.
Although many While the “joint responsibility” provision may allow a lawyer to accept a “referral fee” even if the lawyer performs no work, such fees come at a cost. As a comment to the rule notes, “joint responsibility ” means financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” Rule 1.5, Cmt. 7. That means that, if the lawyer accepts the fee, the lawyer may also be jointly responsible
The very factors that make attorneys’ services valuable – their knowledge of the law and the specialized training that leads their clients to place trust in them – lead to special scrutiny of attorneys’ payment relationships. The attorney-client relationship is a fiduciary relationship and, just as in other fiduciary relationship, the attorney’s dealings with the beneficiary – the client – are subject to special legal scrutiny. As one Illinois court has put it: The law places special obligations upon an attorney by virtue of the relationship between attorney and client. Those obligations are summed up and referred to generally as the fiduciary duty of the attorney. They permeate all phases of the relationship, including the contract for payment.
Under Rule 1.5(a) a lawyer may not “make an agreement for, charge, or collect an unreasonable fee.” By its terms, the rule requires reasonableness to be assessed not only at the time the fee agreement is entered, but also when attorneys bill for services or attempt to collect the fees they are owed by the client. It is therefore possible to violate Rule 1.5 if an attorney seeks to enforce a fee agreement that, while reasonable at the time, was rendered unreasonable by subsequent events. For example, in In re Gerard, 132 Ill.2d 507, 548 N.E.2d 1051 (1989), a lawyer was found to have violated Rule 1.5 after charging a contingency fee based on the value of account assets located for an elderly client. While, at the time the lawyer had been hired, the client had believed accounts were being wrongfully withheld from him, in fact the accounts were not the subject of any adverse claim, but were turned over willingly by the banks holding them once they learned of the client’s whereabouts – requiring little in the way of attorney professional services. More generally, fees are frequently found to be unreasonable when the lawyer does not perform competent work, or neglects a matter, but nevertheless seeks to be paid the full fee for which he or she has contracted. See, e.g., Attorney Grievance Comm'n of Maryland v. Garrett, 427 Md. 209, 224, 46 A.3d 1169, 1178 (2012); Rose v. Kentucky Bar Ass'n, 425 S.W.3d 889, 891 (Ky. 2014).
At their outset, the ABA Model Rules of Professional Conduct (referenced herein throughout as the “Model Rules” or, individual, the “Rule”) require lawyers to serve their clients with competence (Rule 1.1), diligence (Rule 1.3) and loyalty – requiring them to avoid, or at least disclose, ways in which the attorney’s interests may conflict with those of the client. See, generally, Model Rules 1.6-1.8. The attorney-client relationship is also commercial, with the attorney typically entitled to demand payment from the client for services rendered. That commercial relationship inherently creates the potential for conflict. No matter how much the client may appreciate the attorney’s work, it would always be in the client’s best interests to avoid paying for it. Similarly, as much as the attorney may be motivated by genuine respect and admiration for the client, the attorney could always be paid more.
Attorneys commonly use retainers to secure payment of their legal fees and costs. The word “retainer,” however, has a variety of different meanings – and those different meanings result in different application of the relevant ethical rules.
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
Forfeiture laws are premised, in part, on the notion that tainted assets belong to the government as of the date the underlying offense was committed. Although criminal forfeiture judgments are in personam and can be entered only against criminal defendants, civil forfeiture is in rem and applies to assets — and assets subject to civil forfeiture ...
The exception under § 1957 seeks to prevent payments by clients to defense counsel, made for the purpose of compensating counsel for work performed in a criminal matter involving the payer, from being transformed into money laundering crimes.
At bottom, money laundering involves a financial transaction which uses proceeds of certain crimes. The popular understanding of such a transaction is one whereby “dirty” money is placed into a legitimate business or through a nominee account in an effort to “cleanse” the money of criminal taint.
On August 29, the Wall Street Journal reported (paywall) a story that other news outlets later have picked up: the Department of Justice (“DOJ”) is investigating whether Jho Low, a Malaysian businessman at the center of the alleged embezzlement of $4.5 billion from 1Malaysia Development Bhd (“1MDB”), is paying – via two intermediaries – his U.S.-based lawyers with allegedly tainted funds. The report states that there is no indication at this time that the U.S. attorneys were aware that the funds could have originated from money Mr. Low allegedly siphoned off from 1MDB. Rather, the investigation centers on Low’s potential use of intermediaries to facilitate the payments. The DOJ already has filed civil forfeiture complaints seeking to recover almost $1.7 billion in various high-end assets from Mr. Low and others allegedly bought with the embezzled funds, and it reportedly is investigating Mr. Low individually for potential criminal charges.
That is, tainted assets paid as legal fees (in the course of either civil or criminal representation) may only be subject to forfeiture when, at the time of the transfer, there are reasonable grounds to believe that the attorney had actual knowledge (as opposed to mere reasonable cause to believe) that the asset was subject to forfeiture.
However, 18 U.S.C. § 1957 – one of two money laundering statues under the U.S. criminal code – contains no requirement that the government prove an intent to conceal the proceeds of a crime, or any other specific intent, such as an intent to promote the underlying crime. That is, one who simply “knowingly engages” in a monetary transaction ...
Knowledge is the only required mental state, so long as the transaction involves over $10,000. Important for this discussion is that two years after passage of § 1957, Congress amended the reach of the statute so as to exclude bona fide payment for representation in a criminal matter. Codified at § 1957 (1) (“Safe Harbor Provision”), ...
Forfeiture laws are premised, in part, on the notion that tainted assets belong to the government as of the date the underlying offense was committed. Although criminal forfeiture judgments are in personam and can be entered only against criminal defendants, civil forfeiture is in rem and applies to assets — and assets subject to civil forfeiture include not only those which belong to an alleged wrongdoer, but also those which have been transferred to third-parties. With respect to legal representation in a criminal case, there is no Sixth Amendment right to use criminally-derived assets to retain counsel. See Caplin & Drysdale v. United States, 109 S. Ct. 2646 (1989).
At bottom, money laundering involves a financial transaction involving proceeds of certain crimes. The popular understanding of such a transaction is one whereby “dirty” money is placed into a legitimate business or through a nominee account in an effort to “cleanse” the money of criminal taint. However, 18 U.S.C. § 1957 – one of two money laundering statues under the U.S. criminal code – contains no requirement that the government prove an intent to conceal the proceeds of a crime, or any other specific intent, such as an intent to promote the underlying crime. That is, one who simply “knowingly engages” in a monetary transaction involving over $10,000 of “criminally derived property” can be charged under § 1957. Knowledge is the only required mental state, so long as the transaction involves over $10,000.
On August 29, the Wall Street Journal reported (paywall) a story that other news outlets later have picked up: the Department of Justice (“DOJ”) is investigating whether Jho Low, a Malaysian businessman at the center of the alleged embezzlement of $4.5 billion from 1Malaysia Development Bhd (“1MDB”), is paying – via two intermediaries – his U.S.-based lawyers with allegedly tainted funds. The report states that there is no indication at this time that the U.S. attorneys were aware that the funds could have originated from money Mr. Low allegedly siphoned off from 1MDB. Rather, the investigation centers on Low’s potential use of intermediaries to facilitate the payments. The DOJ already has filed civil forfeiture complaints seeking to recover almost $1.7 billion in various high-end assets from Mr. Low and others allegedly bought with the embezzled funds, and it reportedly is investigating Mr. Low individually for potential criminal charges.
The "American Rule" is that each side pays their own attorney fees unless a statute, court rule, or contractual provision shifts the burden to the other side. Unless the land contract provides for recovery of attorney fees in the event of a breach, you will likely have to bear your own attorney fees.
This is a business transaction. You have described a very unfortunate set of circumstances for yourself. But..... that said.... you want the very best, first rate attorney to give this the "seller's attention" needed and to do the job right for you. In fact, both sides should prudently have their OWN retained legal counsel.
Everything is negotiabl, but typically each party pays his own attorney and typically the Seller's attorney drafts the land contract. .
Too may issues, too few facts. General answer, it depends on the contract itself. That should be drafted by an attorney, normally your cost.
You should consult an attorney to review this matter. Ordinarily the purchaser submits a purchase offer which contains terms of the sale. You can have your attorney prepare a purchase offer or respond to their offer requesting certain terms such as the payment for closing costs etc.