Beware of your own Lawyer

BEWARE

OF YOUR

OWN

LAWYER

Gary E. Peel, J.D.

Copyright © 2025 Gary E. Peel, J.D.

All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission from the publisher, except for brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.

DISCLAIMER

The information provided in this book does not, and is not intended to, constitute legal advice. Its purpose is informational only. Readers should contact their own attorney to obtain legal advice about particular legal issues pertaining to the reader. No reader should act, or refrain from acting, based on any material provided in this book.

Introduction

The first thing we do, we’ll kill all the lawyers.

​William Shakespeare – Henry VI, Part II, Act IV, Scene 2

​This oft-quoted Shakespearean phrase is usually spoken pejoratively and out of context.

​The quotation is attributable to a character known as Dick, the butcher. He is part of a gang led by John Cade. The gang meets to devise a plan to seize all of the English government’s wealth and to impose tyrannical rule by the gang’s leader. The seized wealth could then be re-distributed. The government would be forced to sell goods at a fraction of the cost. People who could read and write would be hanged. Accordingly, to Dick, the butcher, the killing of all the lawyers would be the initial step to rid society of anyone obsessed with rules and reason who might impede the gang’s assent into power. By killing all the lawyers, there would be no one remaining to protect the laws, to protect personal freedom, and to create economic prosperity. Power could then be consolidated in one person, John Cade, thereby elevating the tyrants and destroying people with independent thoughts and ideas.

​Despite the historic, literary intent of this Shakespearean phrase, it has come to reflect the general public’s discontent with the legal profession and the inability to do anything about its perceived inequities and unfairness. In our enlightened post-Shakespearean society, the killing of all lawyers, of course, would be impossible and unacceptable (particularly to the lawyers), but suing them is quite a different story and an acceptable alternative. A lawsuit for legal negligence, also known as legal malpractice, is the tool by which a former client, and certain others, recoup financial loss caused by a lawyer’s wrongful conduct. However, not all wrongful conduct by a lawyer gives rise to a claim for legal malpractice.

​Part I of this book is intended to guide the lay person with regard to the attorney-client relationship, including alerts to those situations where the interests of the lawyer and the interests of the client, or potential client, are suspect or adverse.

​Part II is intended to educate the lay person about the concept of legal malpractice with its many nuances, complexities, and idiosyncrasies.

​Part III provides sample errors commonly committed by attorneys. These are presented according to the legal practice areas in which they commonly occur.

CONTENTS

Part I

Chapter 1- Understanding the Attorney-Client Relationship

Chapter 2- Understanding Law School (Education)

Chapter 3- Admission to the Bar.

Chapter 4-Types of Law Firms:

Chapter 5-Advertising of Legal Services

Chapter 6-Direct Solicitation of Legal Services

Chapter 7-Finding the Right Lawyer

Chapter 8-Beginning the attorney-client relationship

Chapter 9- Understanding the Attorney-Client Fee Agreement

Chapter 10 - Negotiating a Better Attorney-Client Fee Agreement

Chapter 11 – Billing

Chapter 12 – Client funds

Chapter 13 – Client Property

Chapter 14 – Misappropriation, Commingling, and Conversion of Client Funds

Chapter 15- Confidentiality (Not!)

Chapter 16- Communication with Opposing Parties

Chapter 17- Conflicts of Interest

Chapter 18- Financial Assistance from Your Own Lawyer

Chapter 19- The Lawyer as Witness

Chapter 20- Settling a Client’s Claim

Chapter 21- Attorney’s Liens

Chapter 22- Discharging Your Lawyer/Termination of the Attorney-Client Relationship

Chapter 23- Discharging the Client

Chapter 24 -The Lawyer Leaves the Law Firm

Chapter 25 – Death of Client or Attorney

Part II

Chapter 26- Differentiating Legal Malpractice from Other Types of Wrongful Lawyer Conduct

Chapter 27- Remedies

Chapter 28- Legal Malpractice Statistics

Chapter 29- Legal Malpractice Insurance

Chapter 30- Preventing Legal Malpractice

Chapter 31- Legal Malpractice Attorney’s Fees

Chapter 32- Who Can Sue?

Chapter 33- Assignment or Subrogation

Chapter 34- When to Sue

Chapter 35 - The Legal Malpractice Lawsuit

Chapter 36 - Defenses to Legal Malpractice Cases

Chapter 37- Legal Malpractice Damages

Chapter 38- Factors Militating Against the Prosecution of a Legal Malpractice Case.

Part III

Chapter 39- Errors Common to Many Different Types of Legal Matters

Chapter 40- Administrative Law

Chapter 41- Adoption Law

Chapter 42- Admiralty Law

Chapter 43- Alternative Dispute Resolution

(Arbitration/Mediation)

Chapter 44- Antitrust Law

Chapter 45- Appellate Law

Chapter 46 - Automobile (Motor Vehicle) Claims and Litigation

Chapter 47 - Banking and Financial Institutions

Chapter 48 - Bankruptcy & Creditor-Debtor

Chapter 49 - Class Actions

Chapter 50- Collection Law

Chapter 51- Consumer Protection

Chapter 52 - Contracts

Chapter 53- Corporate, Business, and Partnership Law

Chapter 54- Criminal Law

Chapter 55- Divorce/Family Law

Chapter 56- Driving Under the Influence (D.U.I.)(D.W.I.),

Traffic & Misdemeanor Law

Chapter 57 - Employment and Labor Law

Chapter 58- Estate Planning, Probate, Wills & Trusts

Chapter 59- Immigration

Chapter 7 – Insurance Law

Chapter 61- Intellectual Property (Patent, Trademark,

Trade Names, Trade Dress, Trademarks, & Copyright)

Chapter 62- Litigation (Civil)

Chapter 63- Military Law

Chapter 64- Real Estate and Personal Property Law

Chapter 65- Securities Law

Chapter 66- Small Business Law

Chapter 67- Tax Law

Chapter 68- Worker’s Compensation & Occupational Disease

Appendix

Appendix A - Sample of Law School Curriculum

Appendix B - Sample Letter of Engagement

(with Commentary)

Appendix C - Sample Clause to be included in Criminal Defense Fee Agreement

Appendix D- Sample Hourly Fee Agreement

(with Commentary)

Appendix E - Sample Contingency Fee Agreement (With Commentary)

Appendix F - Directory of Lawyer Disciplinary Agencies

Appendix G - Sample Federal Court Plea Agreement (with Commentary)

Part I

Chapter 1- Understanding the Attorney-Client Relationship

This chapter is intended to inform, educate, and guide the unsophisticated consumer of legal services about the attorney-client relationship. The layperson needs to understand and recognize those circumstances that render the client’s interests adverse or vulnerable to those of his or her own lawyer.

​Whether interpreting lawyer advertising, searching for the right lawyer, negotiating the terms of a fee agreement, evaluating an attorney’s billing statements, monitoring the legal services provided, or making decisions based upon the lawyer’s advice and recommendations, the client must always be sensitive to the possibility that the lawyer’s own interests and the client’s interests may not be mutually aligned. It is particularly at these times that the client’s trust and confidence in the lawyer must be carefully evaluated so that the client’s actions and decisions are as informed as possible.

​The attorney-client relationship is based on principles of agency. The attorney is the agent or the authorized representative of the client (principal) on the matter for which the attorney is retained. The client has the right to control the attorney’s conduct on the legal matter. BEWARE, however, that the attorney, acting as the agent for the client, has the power to bind the client (within the scope of the attorney’s authority – which is presumed, but rebuttable). In other words, the attorney’s conduct is deemed the client’s conduct, and is binding upon the client, whenever that conduct is within the scope of the lawyer’s authority.

​Information gained or learned by the attorney is imputed to the client (i.e., the client is charged with knowing everything that the lawyer knows, even if the lawyer does not tell the client). Stipulations and agreements made by the lawyer with third parties are binding on the client. Note: the client may be able to recoup his or her losses by suing the lawyer for legal malpractice.

​Attorney statements or admissions made during litigation are binding upon the client. Expenses and costs incurred by the lawyer for the benefit of the client are due and owing by the client. Even the lawyer’s release, settlement (including confessions of judgment), or dismissing of client claims are binding on the client.

​The attorney-client relationship is a multifaceted, fiduciary one based on principles of agency, tort (negligence) law, and contract law. It is the client who is the boss in the relationship. The lawyer can, and should, make suggestions and recommendations for the client to consider in the decision-making process. It is the client, not the lawyer, who is in charge of the legal matter. Because there is always a potential for a fee dispute or a legal malpractice case, the lawyer’s significant suggestions or recommendations to the client should be memorialized in some fashion, i.e. either the lawyer should send the client some form of written communication (letter, e-mail, text message, etc.) or, if the lawyer fails in that regard, then the client should send a written communication (letter, e-mail, text message, etc.) to the lawyer confirming what the lawyer suggested or recommended, the reasons for same, and the decisions, if any, that were reached based upon those suggestions or recommendations. The lawyer’s paramount duty is to the client. It is important that the client be as fully and currently informed as possible under the circumstances. Decisions are more likely to be sound when they are made with full knowledge of the risks, options, benefits, and consequences associated with them. The lawyer is obligated to follow the client’s instructions (unless they are fraudulent, illegal, or otherwise improper). If the lawyer cannot abide by the client’s directives, then he or she should withdraw from the representation, and allow the client to seek other counsel. Conversely, if the lawyer refuses to follow the client’s legitimate instructions, then the client should discharge the lawyer and seek other representation.

​While federal and state constitutions, statutes (laws), regulations, guidelines, and ethical opinions are filled with language susceptible to various interpretations and nuances about the attorney-client relationship, it is the purpose of this book to avoid the nuances, and esoteric discussions of this topic leaving them for legal scholars and debating adversaries. Instead, this book is intended to provide the average layperson with general, non-exhaustive informational guidance for dealing with lawyers. To this end, the author has, on occasion, taken some liberties in providing examples to demonstrate a concept. This, of course, has resulted in the sacrifice of completeness and accuracy in favor of conveying a more understandable legal concept for the lay person.

​Because everyone’s personal legal matters and goals are different and because there are jurisdictional variations in many laws and their application, this book is not intended to provide legal advice on anyone’s specific legal matter. For such assistance, anyone with legal issues should consult with an attorney who practices law in the reader’s jurisdiction.

​While this book is intended to be educational, no effort will be made to address the nuances and idiosyncrasies that inevitably arise in different jurisdictions. No attempt, for example, will be made to differentiate, counties, parishes, boroughs, or cities (that are not located within counties, parishes, or boroughs). In many jurisdictions, the beginning document filed with a court, in a civil action, is called a Complaint (filed by a Plaintiff, or Complainant) and defended by a Defendant. In other jurisdictions, the beginning document, in a civil action, may be referred to as a Petition (filed by a Petitioner, and defended by a Respondent). When parties are later, added to civil litigation, the parties may be referred to as Third-Party Plaintiffs, Third Party Defendants, Cross-Petitioners, Cross-Defendants, etc. Depending upon the jurisdiction, the initial document filed in a criminal case may be called an Indictment, an Information, or a Complaint. The term Court is often used to refer to Judge, in one context, but to a tribunal, where legal disputes are resolved, in another context. This book may refer to these differences interchangeably, with the understanding that the term may not be appropriate for the reader’s locale. The terms lawyer, attorney, counsel, proctor in admiralty and legal counsel are also used here interchangeably. Jurisdictions, and even the different types of litigation within the same jurisdiction, may dictate the burden of proof a litigant must carry to persuasively win his or her case. Beyond a reasonable doubt, by a preponderance of the (credible) evidence, and by the greater weight of the evidence" are all terms, used in different jurisdictions, that in one way or another describe the burden of proof required of parties to litigation. This book may use many of these terms interchangeably.

And the discovery or discovery process, as used in this book is a term of art, commonly used in the legal profession to mean, and include, 1) interrogatories (formal written questions directed by one party to one or more other parties) that must be answered under oath or objected to if they are inappropriate; 2) demands for production of documents (directed to one or more other parties) which require that opposition parties (and their attorneys) produce, or make available for inspection, various physical locations, vehicles, machines, equipment, documents, photographs, videos, products exhibits, computer data, e-mails, text messages, billing records, e-discovery materials, and the like that are relevant or may be relevant to the pending litigation, or which may lead to the discovery of materials that are relevant to the litigation; 3) requests for admission of facts or the genuineness of documents, with the intent of obtaining an admission that the submitted facts are not in dispute or that the genuineness of certain documents are not in dispute and may be utilized at trial without the necessity of having a witness testify to their authenticity. The failure to timely admit, or object to, a request for admission is usually treated as a binding admission of the fact(s), or the genuineness of the document(s), so as to eliminate the need to otherwise prove the same at trial or other court-related proceedings; 4) depositions (oral and written) which are formal questions and answers (under oath), directed to a party or witness and recorded by a court reporter or other recording device, intended to identify and expand upon disputed facts regarding the matters at issue in the litigation; 5) requests and/or demands (sometimes with court orders or supervision) to view/inspect any product or location whether or not in the exclusive possession and/or control of another party, and 6) physical and/or mental examinations of a party (where same is an issue in the case). Certain things may be exempt from discovery and requests or demands to obtain them should be opposed. These may include privileged or protected information (e.g., spousal communications, attorney-client communications, clergy-penitent communications, doctor-patient communications, attorney work product materials, etc.), social security numbers, tax identification numbers, bank account numbers, etc. These exceptions can be waived if relevant and pertinent to the litigation. For example, in a case alleging personal injuries, the filing of a lawsuit to collect damages, the doctor-patient privilege is deemed waived to allow the opposing party to learn what the doctor and client have to say about the disputed injury and its cause, nature, permanency, treatment, etc.

Chapter 2- Understanding Law School (Education)

With few exceptions, anyone desirous of attending a law school must first obtain an undergraduate college degree, or otherwise qualify for admission, and pass the Law School Admissions Test (LSAT). The score will range between 120 and 180. Usually, a score of 160 or above will be considered passing and a 170 or higher will usually qualify an applicant for admission to the more elite law schools. The higher the LSAT score, the more likely that admission will be granted by the more prestigious law schools. Law school accreditation is determined by standards established by the American Bar Association. Not all law schools are accredited, and graduation from a non-accredited law school may allow the graduate to practice law within the state of the non-accredited law school’s location but may create admission problems for the attorney should he or she seek licensure in another state.

​Typically, a law school curriculum is a three-year program leading to a Juris Doctor (JD) degree [formerly known as a Bachelor of Legal Letters (LLB) degree].

The law school curriculum includes two semesters of required courses and four semesters of elective courses. While there are slight variations among law schools, the required courses frequently include the following courses during the first year, i.e., Torts (Negligence), Contracts,              Civil Law & Procedure,              Legal Writing & Research I, and Legislation & Regulation. During the second year, required courses will often include Constitutional Law, Criminal Law, Property, Legal Writing & Research I, and Legal Research.

​Depending upon the law school, there can be as many as 100 -150 elective courses of study for the law student to take. See Appendix A for a sample listing of mandatory and elective law school courses. It is possible for a law student to get elective credits for related courses taken prior to entering law school, such as insurance, accounting, engineering, social work, and information technology. Most graduating lawyers will take approximately fifteen of the available elective courses to graduate. For the astute layperson, simple math will demonstrate that there may be more than one hundred courses that a graduating lawyer does not take. Many of the elective courses are taken by persons seeking to obtain a master’s Degree [called a Master of Legal Letters] (abbreviated LL.M.) or a Doctoral Degree [called a Doctor of Juridical Science, Doctor of Science of Law, Scientiae, Juridicae Doctor, or Juridicae Scientiae Doctor (abbreviated S.J.D., J.S.D., or LL.D.)]. BEWARE of the saying, Trust me, I’m a lawyer. If the slogan implies competence in the law, the reality is that most lawyers have not been educated in most legal specialty fields.

​But for the layperson, it is important to recognize that graduation from law school and passing the bar exam does not justify any assumption that any one given lawyer is necessarily qualified to practice in any one, or in all, areas of the law. In fact, it is entirely possible that a lawyer may choose to specialize or limit his or her legal practice to areas of the law in which he or she has never even taken a law school class or course. This becomes particularly important when it comes time to evaluate lawyer advertising and when it is time to retain legal counsel.

Chapter 3- Admission to the Bar.

A graduating law school student’s privilege (not a right) to practice law in any given State, is regulated by that State’s highest court. Generally, a lawyer must not only graduate from an accredited law school but he or she must also successfully pass the State’s bar admission exam (a portion of which qualifies for multi-state bar examination purposes) and demonstrate the necessary character and fitness to be granted a license to practice law. In the State of Wisconsin, for example, a student who graduates from an accredited Wisconsin law school is presumed knowledgeable in the law and is, therefore, not required to take and pass the Wisconsin State Bar exam to practice law in that state. Bar admission is automatic on graduation from an accredited Wisconsin law school. Once admitted to practice law within any given state, that privilege extends to all the courts and legal tribunals in that state, including the State’s lower/trial, appellate, and highest /supreme courts.

​In order to practice law in other States, the lawyer must a) pass the bar exam in those other States, b) be admitted by reciprocity in accordance with the rules and regulations of the admitting state, (frequently including a requirement that the applying lawyer first practice for a certain number of years in his or her state of initial admission, or c) be admitted pro hac vice (i.e. for the purposes of a single case or purpose and often on the condition that a local lawyer, familiar with local court rules, join as co-counsel).

​To practice law in the federal courts, and federal tribunals, a lawyer must first be admitted to practice law in a State court and must then petition the federal courts in that State, circuit, or jurisdiction for permission to practice law before those various federal courts. Many lawyers are licensed to practice in more than one state and in more than one federal jurisdiction. Also, it is not uncommon for a law firm with offices in several states, to have individual lawyers within that firm that are licensed in some, but not all, of the States where the law firm has offices. In that case, the law firm’s letterhead will frequently note the limitations on the States of individual lawyer licensing.

​Each State has some form of continuing legal education requirements to make sure that lawyers keep abreast of changes in the law and remain alert to their ethical obligations. Lawyers may choose to attend continuing legal education courses that may, or may not, fall within their area of legal concentration. However, for those lawyers who have been certified by their State in an area of specialization, it is common for the continuing legal education requirements to include attendance of a certain minimum number of hours in that area of specialization. Similarly, national certification organizations require that members complete a certain number of minimum hours in the specialty field to maintain membership eligibility.

​A lawyer’s failure to pay annual court fees, a lawyer’s failure to attend mandatory State continuing legal education courses (in States that require it), or a lawyer’s professional misconduct may all jeopardize the lawyer’s privilege to practice law.

Chapter 4-Types of Law Firms:

There is a myriad of law firm organizational structures (known by various names) including the following:

a)      Professional Service Corporations (PSCs)

b)     Professional Limited Liability Companies (PLLCs)

c)      Limited Liability Companies (LLCs)

d)     Limited Liability Limited Companies (LLLCs)

e)      Registered Limited Liability Companies (RLLCs)

f)       Registered Professional Limited Liability Companies (RPLLCs)

g)     Registered Limited Liability Partnerships (RLLPs)

h)     Professional Associations (PAs)

i)       Professional Corporations (PCs)

j)       Licensed Professional Associations (L.P.A.s)

k)     General Partnerships

l)       Limited Partnerships

m)   Limited Liability Partnerships (LLPs)

n)     Sole Proprietorships

o)     Sole Practitioners,

p)     C Corporations

q)     S Corporations, and

r)       a combination of one or more of the above

​The client should BEWARE of law firm structures that utilize the term corporation or limited liability because they are asset protection devices. The use of these terms indicates that the lawyer, or law firm, is putting you, the client, on notice that if the lawyer, or law firm, ever gets sued by you, the client, then the amount of money that you can collect may, in some fashion, be limited, i.e. certain lawyers will not have any financial exposure to the client above and beyond his or her investment in the law firm (and any applicable insurance or self-insurance coverage). Regardless of the business form, however, a lawyer is liable for his or her own negligent acts or omissions and a law firm is generally liable for the negligent acts or omissions of each lawyer employed by that law firm.

​While these organizational structures are significant for the lawyers and law firms involved, they will seldom impact the client providing that the law firm carries professional liability (legal malpractice) insurance or qualifies as a self-insured law firm under State imposed criteria. Legal malpractice insurance is discussed in later chapters.

​Many larger law firms are set up with specialty sections, or departments so that lawyers with expertise in a certain field of law are grouped together to economize and expedite legal services to a client whose needs fall into the specialty, or departmental, fields. Errors by any one member of a law firm, including paralegals, secretaries, investigators, and other support staff, may be chargeable to all other members of that firm.

​BEWARE of lawyers that share office space, office stationery, office telephone numbers, office support staff, common trade/firm names, etc. with other lawyers. Sole practitioners who share office space with other lawyers may not have any backup lawyers to help them when they are sick or otherwise unable to address your legal needs. This might manifest itself when your case is set for trial, motion hearing, deposition, etc., but your lawyer is too ill to attend. Similarly, a client should BEWARE of of counsel designations on a law firm’s letterhead, office door, office advertising, etc. This of counsel designation can include multiple relationships between that of counsel person and the law firm that utilizes that designation. It is always advisable to inquire as to the of counsel person’s relationship and role in the law firm. The above-referenced arrangements suggest to the client that all the lawyers work together and share responsibilities regarding all clients, when in fact, that is not the case. These arrangements, suggestive of a combined law firm, often lead to claims or lawsuits against all the lawyers for the neglect of one who was supposed to be operating as a separate entity. These arrangements are sometimes referred to as partnerships by estoppel. In other words, by sharing office space, office stationery, office telephone numbers, office support staff, common trade/firm names, or of counsel status, etc. with other lawyers, all the lawyers have participated in misleading the public into believing that the group of lawyers is a single law firm. By doing so, they are legally barred or prevented from denying that the client was misled into thinking that he or she was dealing not with just one lawyer but with the entire group of sharing lawyers (who then may have to share financial responsibility if the client latter sues for financial harm by any one of the sharing lawyers).

​Similarly, there are occasions when one or more lawyers or law firms will join forces for the purposes of prosecuting, defending, or working on a client’s legal matter. Often this occurs when legal work must be performed in different jurisdictions or when legal work is required in different specialty fields of law. In these types of cases, the legal responsibilities are shared by the participating lawyers or law firms, the client is made aware of the necessity for the arrangement, approves of said shared arrangement, and the lawyers will, in fact, share the legal work and legal fees in accordance with a negotiated arrangement acceptable to the client. In these types of arrangements, the client will have the benefit of insurance coverage (or law firm self-insurance coverage) from all involved lawyers and law firms).

​Where a lawyer or law firm is structured in such a fashion as to limit the potential financial exposure to a client, in the event of a successful legal malpractice claim, for example, by the use of a corporate or limited liability structure, then many States impose, as a condition of law licensure or renewal, that the said attorney or law firm carry a certain specified minimum amount of legal malpractice insurance or post a bond or other proof of financial responsibility so as to protect the client who might be harmed by the lawyer’s legal malpractice. But the client should BEWARE of those situations in which the potential loss related to the client’s legal matter exceeds the insurance or self-insured limit, as provided by the lawyer or law firm. If this risk exists, then the client should demand to see the insurance policy, self-insurance documents, and/or other documents that protect the client in the event of legal malpractice by the lawyer or law firm. The attorney-client fee agreement should then provide language that clearly imposes upon the lawyer or law firm an obligation to carry, and keep current, adequate financial protection during the course of the client’s legal matter.

Chapter 5-Advertising of Legal Services

BEWARE of advertisements offering legal services. Restrictions on lawyer advertising have an interesting history that carries over into today’s market for legal services. Years ago, lawyers were barred from all advertising of legal services. Lawyers were historically permitted by ethical guidelines to advertise (usually on their letterhead, or in the Yellow Pages©), that their law practice was limited to a certain field of law, or that they concentrated in one or more fields of law, or that they were available to practice in certain fields of law. That was it. Not even fees charged could be advertised. While these three terms (limited, concentrated, and available) may have suggested, or implied, that a certain expertise in the designated fields of law existed, the exact opposite could be true. For example, a lawyer, fresh out of law school and having recently been admitted to the bar, could open his or her own law firm, hang out a shingle, and then advertise his or her concentration, limitation, or availability in a certain field of law (such as immigration, employment law, social security, etc.) even if he or she had never even taken a law school class concerning that topic. Technically, the lawyer was, and still is, required to be truthful in his or her advertising. But under the above-mentioned hypothetical example, the lawyer’s truthful intent to practice in one of those fields conveyed nothing to the public about his or her lack of experience or education concerning that field of law. This method of advertising is still in use today.

​Also, from a historical perspective, lawyers, years ago, were obligated to