Can I Get a Refund From an Immigration Attorney I Fired, After Paying a Flat Fee?

How to calculate amount of reimbursement owed in flat-fee arrangement with immigration lawyer.

Question

My immigration lawyer and I just weren't getting along well, so I asked him to stop work on my case so that I can find another lawyer. He was helping my wife and I apply for a green card for me, based on our marriage. He got as far as submitting the adjustment of status paperwork for me, but was going to attend the interview with us, also.

The issue is, we paid him a flat fee upfront, over a thousand dollars, and now he says he doesn't owe us any money back. He pointed to a little clause in the contract that we never noticed, saying that the flat fee is nonrefundable. Is this legal? I want all my money back!

Answer

You aren't likely to get all of your money back. However, keeping any amount of the fee that the lawyer didn't actually earn is not allowed under the ethical standards by which U.S. lawyers must abide in order to keep their professional license.

Take a look at Section 1.16(d) of the Model Rules of Professional Conduct (which all U.S. states have either adopted or use some version of). It discusses the lawyer’s ethical obligations when the working relationship with a client has been ended, as follows:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.

Let's back up a minute and remember that there's nothing wrong with the flat fee arrangement in and of itself. Flat fee arrangements are common among immigration lawyers, and offer many advantages for clients who can't afford high attorney fees. Their main advantage is that no matter how much work the lawyer does in carrying out the promised services, you will pay no more than the flat fee amount.

But a major disadvantage comes along if and when someone fires an immigration attorney with whom they had a flat fee arrangement. Figuring out how much, if any, you are owed in return can be a challenge. Ideally, the fee agreement that you signed with your lawyer at the outset of representation would cover refund policies, but you didn't mention finding that in your fee agreement. (Check again, just in case!)

In theory, it sounds like you paid for some services that the lawyer hasn't performed yet (given that he was going to attend the adjustment of status interview with you). So, it seems pretty clear that the lawyer has not earned the entire fee that you paid. But how to translate that into dollars?

The preferred method among legal ethics experts is to work it out on the basis of proportion of work done. So, for instance, if attending the adjustment of status interview with you would have represented a mere 15% of the total work on your case, then refunding you 15% of the flat fee would be appropriate. Unfortunately, an attorney whose ethics are already in question (given that he is trying to retain the entire fee) might pretend that the proportion of work that the interview represents was tiny.

Another possible way to calculate the fee to be refunded is for the lawyer to tell you how many hours he spent, and his normal hourly rate, and multiply the two. Unfortunately, however, this may result in the entire fee having been eaten up, and then some! (Don't worry, the attorney really can't charge you for the extra at this point.)

Assuming you're hiring another lawyer, you might want to consult with him or her on what percentage of the lawyers time was likely spent preparing the case to this point, as opposed to how much time attending the interview likely would have taken. Then use that as the basis to write a demand letter to your attorney, asking for a refund. If you don't get satisfactory results, take the matter to your state attorney bar association.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
FEATURED LISTINGS FROM NOLO
Swipe to view more
NEED IMMIGRATION HELP ?

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you