Client's Billing Woes: Clients Need Be Respected, Too

Posted by Daniel Clement on April 28, 2010

Jennifer Walzer, in her You’re the Boss blog describes how she was mistreated and taken advantage of by lawyers retained to represent her business. It is no wonder why lawyers have such a bad reputation.

In her article, Walzer describes how her lawyer’s retained to represent her in connection with a relatively simple real estate lease, ran up a bill which exceeded her budget and expectations. When she questioned time charges which did not jibe with he records, she was ganged up upon and attacked.

In one case Ms. Walzer describes how she was charged $60 for an email exchange in which she said acknowledged receipt of her lawyer’s email and that she would respond in due course. The lawyer responded, “I hope everything is O.K. Take your time.” When confronted, the lawyer’s justification for the charge was:

Your e-mail took me away from a multimillion dollar agreement I’m working on, so if I have to stop what I’m doing to view and respond to an e-mail, then I have to charge you.

All I can say is that I am shocked and astounded.

While Ms. Walzer’s matter may not have been as lucrative to the firm as the "million dollar deal" the lawyer was working on, it was important to her. Her lawyers should have treated her and their client’s with the same attention and respect as they did their client “million dollar transaction client.” If the matter was "below" the firm, they should not have taken on the representation.

I have candidly told some prospective client’s that some cases or issues they wish me to pursue would not be cost effective for me to handle. I understand that my client’s have budgets -if a case can be resolved within a client’s budget, I explain why.

As a practitioner, I, more often than not, find myself not billing for causal, non substantive/social emails and telephone conversations.

Regardless, billing questions should not be handled in an adversarial manner. If the time charge cannot be justified or explained, a client should not have to pay for it. Lawyers should know, in court, you have to prove your case with competent evidence- if you can't prove your case, you lose. If the lawyers cannot justify their bill to the client, they would have a tough time in court.
 

Samurai Sword Attack Is Not Cruel and Inhuman Treatment- Divorce Denied

Posted by Daniel Clement on April 13, 2010

In yet another odd case, a husband who was attacked by his wife with a three foot samurai sword,was not entitled to a divorce based upon his wife’s cruel and inhuman treatment.

Although the Court found that the wife would have killed the husband, but for his daughter’s intervention, the Court in the case S.K. v. I.K. found that:

. . . at no time did the husband testify that the alleged cruel and inhuman treatment of him by the wife so endangered his physical or mental well being as to render it unsafe or improper for him to cohabit with his wife as required by DRL §170(1). Plaintiff did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor. In fact he never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with Wife to return to the marital residence to work on their marriage.

To obtain a divorce on the grounds of cruel and inhuman treatment, a plaintiff must show "a course of conduct by the defendant which is harmful to the physical or mental health of the plaintiff such that it makes cohabitation unsafe or improper." . A plaintiff must demonstrate more than incompatibility or that they have irreconcilable differences — serious misconduct must be shown.

In a marriage of a long duration a higher degree of proof is required to establish cruel and inhuman treatment. In this case, where the parties were married since 1979 and the husband failed to offer any medical records evidencing physical or mental injury or police reports evidencing a course of conduct, this single incident was insufficient to establish a cause for divorce of action for cruel and inhuman treatment.

Certainly this marriage has irreconcilably broken down. How ironic, that in a case where one spouse nearly murders the other, the parties could not sustain a cruel and inhuman fault grounds for divorce. Is this case an argument for no-fault divorce?
 

Newlywed Surviving Spouse of Infirm Elderly Husband Denied Elective Share

Posted by Daniel Clement on April 06, 2010

Every once in awhile a case comes along that is so egregious, that even where the law should compel a court to rule one way, the facts force a different result. The case of Campbell v. Thomas is one such example.

Here are the facts as recited by the Court:

Nidia well knew, Howard's dementia had advanced to the point that he often had difficulty recognizing family members, had lost the ability to understand his legal and financial affairs or even to attend to his own basic hygiene, and could not be left alone for any period of time. Nidia had also been informed that, due to the progression of his prostate cancer, Howard was not expected to live much longer. With knowledge of these facts, Nidia waited until Nancy, Howard's primary caretaker, left for a vacation, and then married Howard, without informing Nancy or any other member of Howard's family until after the fact.

The facts go on to recite that somehow, before his death, Nidia manipulated Howard’s finances and somehow became the sole beneficiary on Howard's retirement account.

Five years after Howard’s death, the marriage was declared to be “null and void” on the ground that Howard was "incapable of consenting to a marriage for want of understanding."

In New York, a spouse has a right of election which entitles a surviving spouse to portion of the decedent’s estate. The purpose of this provision is to prevent one spouse from dis-inheriting the other.

In this case, Nidia sought to collect her elective share of Howard’s estate.

Though the Court found that technically Nidia had a right to an elective share as a “surviving spouse”- it applied the age old principle that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong” and denied Nidia her right to her elective share.

While the Court was clearly offended by Nidia’s conduct, its ruling was also motivated by the need to protect the elderly and infirm from overreaching and undue influence. The Court made it clear that even in absence of statutory prohibitions, it will not condone marriages to the elderly and those lacking capacity motivated by a desire to cheat them or their estates.
 

Boyfriend's Promises To Support Ex-Girlfriend After Break-up Are Not Binding

Posted by Daniel Clement on April 01, 2010

The promises of an executive to support his girlfriend if they ever broke up are unenforceable. The girlfriend is not entitled to “equitable distribution” of the assets acquired during the relationship.

Justice Ellen Gesmer ruled that such statements as "I will always take care of you" and "everything that we put in, we will enjoy together" do not constitute legally binding promises.

"Indeed, even if [the defendant] had made an explicit promise that, upon separation, [the plaintiff] would be entitled to 'equitable distribution' of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people," Justice Gesmer wrote in Ericson v. Baron.

The plaintiff, Malin Ericson, alleged that her boyfriend,  Fabien Baron, in addition to promising to always take care of her, assured her if they broke up he would treat the separation as if the couple had married.

But the absence of a marriage is the determinative factor of her property rights. Judge Gesmer noted that “Unless and until the law imposes equitable distribution on unmarried couples, in New York, as least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple."