Personal injury attorney not releasing funds from settled portion of our case?

We have been dealing with a personal injury lawsuit for about two years. The accident occurred in CA and we reside in another state, so we are dealing with our attorney all long distance. The case has been complicated, mainly due to an inattentive attorney from the start, whom we fired. We retained our current attorney not too long ago and the case against the defendants insurance company has been resolved and funds have been sent to our attorney. Here is where it becomes tricky. The funds for my settlement have been sent to us, the attorney is holding the funds from my husband’s portion of the settlement until a settlement is reached with our insurance company (the defendant was an underinsured driver, we had underisured driver coverage). Our attorney claims he cannot release these funds because he will more than likely need to spend the money on litigating the case against our insurance company..and it just does not make sense to me. In our eyes, the case against the defendant is closed (and in the courts eyes) I don’t see why the funds cannot be released, but my attorney alleges this is normal practice in personal injury law. Anyone have any experience with a situation similar to this? Thanks.
@leo, I don’t think you understand the nature of the question.

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2 Responses to “Personal injury attorney not releasing funds from settled portion of our case?”

  1. Mark J Says:

    Obviously the attorney you’re working with is working on a contingent fee basis rather than working on retainer.

    As such, his cutting you a check for part of the settlement was actually rather accommodating on his part.

    The way contingent fee contracts typically work is as follows: the client pays nothing, the attorney assumes the initial expense of the case as well as the risk involved should he not prevail. A running tally is kept of any fees (depositions, filing fees, record fees, process server fees, postage, long distance calls, copying fees etc.) as well as medical expenses if the attorney guarantees medical costs as the case progresses.

    After the case is completely resolved, the attorney takes his cut (33 1/3 is fairly standard) and then deducts expenses from the client’s portion of the award and cuts a check for the balance to send to the client.

    Since litigation is continuing against one party in your suit, obviously he’s not going to send you all the money until he knows what his expenses are going to be (and what his cut will be).

    So yes, it’s a very normal practice in personal injury law when dealing with contingent fee situations. As I’d said, I’m surprised he was willing to forward anything as many firms normally won’t until the matter is fully resolved.

    Now, had you gone out and retained an attorney (through a retainer fee up-front) you’d be absolutely correct in expecting to receive the full balance due to you of an award as soon as practical after your attorney received payment.

    At this point, if you really want the money now, your best option would be to direct your attorney to end all legal actions being taken against your insurance company, but be aware that any expenses he’s made on your behalf in the matter involving your insurance company would also be deducted from the remaining award before he’d cut you a check

  2. Says:

    You don’t think the insurance company is going to give you a run for that money, claiming unjust enrichment and so on? Mouthpiece is right! Insurance companies write the rules of insurance. These guys have nothing but money for legions of attys to defend this type of claim. Prepare to do battle – and possibly lose!