Stalled settlement check in Calif. raises concerns

Q: About a year and a half ago I was a passenger in my aunt’s car in California and we were hit almost head-on by a 17-year-old driver who was driving too fast and came into our lane. I suffered upper body injury. I have used my aunt’s lawyer in L.A. Since then I have received treatment for my injuries, and three months ago this attorney sent me two checks to sign and return to him, as part of the settlement, and he said that he would return the money to me. He hasn’t. Does he have to keep the money in his account for a certain period of time? He has not returned e-mails or phone messages. I don’t understand why it is taking so long.

A: You are right to be concerned. First of all, it is very rare for a case to be settled in installments, as you describe. Typically, when your attorney negotiates a settlement, the other side writes out a check made out to you and your attorney. You sign it, your attorney deposits it into a trust account, and then disburses the proceeds once it clears. If there are fees, bills or liens to be paid, they are paid first, and the remainder is sent to you. An attorney would not withhold your portion of the settlement unless there are obligations to be paid on your behalf in the future.

Every lawyer has a basic obligation to communicate as necessary with a client. This is a fundamental rule, true in California as well as Maine. Your lawyer is obliged to respond to your calls and e-mails, especially when the questions involve the status of money that he is holding for you. Simply put, you have the right to this information, and your lawyer must provide it to you.

The attorney should provide you with an accounting so that you know exactly what has been paid and what remains. There may be a very legitimate reason your lawyer has not returned your portion of the settlement, but there is no way for you to know this without an accounting or explanation.

You may wish to send him a letter (making sure to keep a copy for yourself) posing very specific questions about the settlement checks you signed and sent. Ask precisely how much he is holding, how much has been sent and to whom. If you have not actually signed a final release, ask about the current status of the case. In every personal injury case there is a statute of limitations, the time within which a lawsuit must be filed. These deadlines do vary from state to state, and can be as short as two years. You need to know the time limit in California, and your attorney should tell you.

Also specify a certain time by which the attorney must respond in writing to your questions. If he does not meet that deadline, you may contact the state board in California that investigates client concerns regarding attorney conduct. You are always free to hire a new attorney, and your present attorney will be obliged to give you a copy of your file. But do give your attorney the opportunity to reply to your letter before exercising that option. But if none is forthcoming, you can contact the ethics board. Your lawyer will certainly take that call.

This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. Go to AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to “Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor, 04402-1329 will be forwarded

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