Expert Witness Files Complaint Against Texas Attorney for Delayed Payment of Expert Witness Fees

An expert witness has filed a complaint against Austin (TX) attorney Marc G. Rosenthal for delaying the payment of his expert witness fees and the Commission for Lawyer Discipline, State Bar of Texas has taken note of the complaint. The Brownsville Herald reported,

The State Bar of Texas’ Commission for Lawyer Discipline is calling for the disciplining of Austin-based attorney Marc G. Rosenthal for allegedly paying a funeral director for referring a case to him and for failing to timely pay an expert witness in another case.

Rosenthal’s firm had retained J. Brandon Durbin as an expert witness in a case for which Durbin raised an invoice of $36,090 on Dec. 31, 2008. Though Rosenthal had post-dated a check to Durbin in early March 2009, he later ordered a stop payment. The entire amount was however, paid after two years in March 2011.

Rosenthal’s attorney believes that this is more likely to be a civil debt issue than that of lawyer misconduct and indStop-Paymenticated that the delayed payment was an oversight.

The petition also involves a complaint of allegedly paying a funeral director for referring a case to him.

Would you file a complaint against an attorney for delaying your payment (note that the payment was delayed by more than two years in this case and a stop payment was also issued on an earlier check.)

How often do attorneys delay expert witness payments and what are the safeguards experts can take to ensure timely or upfront payment?

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6 Responses so far.

  1. I testified for a client in a condemnation case who then refused to pay me. While the client’s condemnation award was sitting with the County Treasurer, I filed a lien against the award. I had a hearing in front of a circuit court judge who ruled in my favor and gave me statuatory interest from the date I submitted my invoice.

    I also learned (the hard way) that an attorney can claim they were merely working as an agent for the client and that they have no responsibility to pay the expert(s). It is up to the expert to have a written agreeent with the client for services, timing, and amount of payment. If the attorney insists on signing the contract for professional services, make sure that the contract clearly states that the attorney IS responsible for payment. That will either convince the attorney that he/she should have the client sign the contract or he/she WILL be responsible for fulfilling the terms of the agreement with the expert.

    An expert always enhances their legal standing with a solid agreement for their services.

  2. This can be a risky business and there are indeed attorneys that will try to cheat you out of your chips. Many are quite arrogant about it assuming that because they are attorneys they can attempt to intimidate or tie you up in litigation that you cannot afford.

    Once again that’s why I get the drop on the attorney by demanding an advance non refundable retainer. I learned that trick whence attending a FEWA sponsored SEAK conference in Newport Beach a few years ago. The $100 I paid for the 8 page retainer agreement has paid insurmountable premiums.

    Additionall, as an active general contractor for almost 3 decades I’ve grown to understand the value of staying ahead of the cash flow game by pacing my projects according to the cash flow I’m working with.

    Attorneys deal with cash flow issues just as any other business does in our economy. As such they try pacing their revenues accordingly. Especially when you’re dealing with a contingency based class action litigation whereby the attorneys are front ending several hundreds of thousands of dollars in hopes of being awarded a settlement that will end up in the black.

    In so doing it’s not unusual for them to age their payable’s to the max thereby stringing their experts out to the limit. In many cases they actually force the experts to negotiate reductions on balances just so the EW’s can realize something as opposed to nothing.

    The EW world is not the easiest road to hoe. Thank God I’ve got other revenue streams to rely on. However, having said that thanks to the SEAK non refundable retainer agreement I’ve yet to be burned. My biggest write off to date was $250. Whew! I hope non of the attorneys I work with read this thread.

  3. Ed Ricketts says:

    I always have counsel sign an engagement letter obligating the counsel to pay.

    I learned the value of this years ago when a couple attorneys did not pay me. I filed a small claims suit against both, and they promptly paid up.

  4. David Priver says:

    I have had attorneys stiff me several times, despite having a written and signed agreement with them. It appears many others have as well. I have often wondered if there would be any value in creating a “bad debt lawyers” web site in which we would list those attorneys who have failed to pay their experts. This would permit any potential expert to look up the attorney’s name before agreeing to work with him/her and find out if there’s any history of this sort of behavior. What do others think?

    • Expert Witness Guru [Ashish Arun] says:

      David,

      Sounds like a good plan if experts are willing to report such practices. Till we reach a formal consensus, you can always let me know and I will find a way to report it on the blog. Eventually, we can dedicate a section of the blog to such reports.

      Ashish

      • I would be very amenable to providing names of attorneys who have stiffed me, for a “Wall of Shame” type warning. I suggested this elsewhere a while ago, and the response was that it would make the blogger, and expert (unless completely anonymous) vulnerable to libel lawsuits from the alleged deadbeat attorney, and that was that. I have a copy of the SEAK contract as well, and it works as well as we let it work. The last attorney who stiffed me paid me a reasonable fee up front, but my review exceeded the retainer, and i did not insist on a supplemental retainer up front. My final opinion was more negative than positive, and that was the last time I heard from him. Lesson: if a case is not a slam dunk, get paid up front for everything you do, or stop work until you get paid. Rosalie Hamilton says get paid up front for everything, or else it’s your own damn fault.