Verbal Lease Agreement

Do NOT to enter the lawyer's place of business. You were given notice that you were NOT to enter. See penal code statute regarding criminal trespass:

PENAL CODE

CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS

§ 30.05. CRIMINAL TRESPASS.

(a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

(b) For purposes of this section:

(1) "Entry" means the intrusion of the entire body.

(2) "Notice" means:

(A) oral or written communication by the owner or someone with apparent authority to act for the owner; . . .

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Noddy24 wrote:

Echi--

Standing up to posturing bullies is always a laudable effort. Good that you have then energy and the enthusiasm for this particular windmill.

Thanks, Noddy.

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realjohnboy wrote:

My suggestion was that you should do what is right regarding the money, get your guitar back, forget about your ex-friend and move on with life. But this lawyer, if your description of the events of the last few days is accurate is, in non-legal terms, a pr*ck, and if you have the stamina, nail his butt to the wall.
You are very fortunate to have some fine pro-bono legal advice here.

I know. I cannot fully express how grateful I am to all of you, esp Debra Law (who has sent some invaluable PM's, as well). Without this resource, my ignorance of the law would surely have worked in this attorney's favor.

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I'm picturing a large building with many offices. Telling him not to enter the office (place of business), while telling him to come get his guitar downstairs... Does that violate the trespass law, Debra?

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I have reviewed a number of pages here, looking for some kind of reference to something that was written down on paper. Can't find anything. Ephemeral evidence to support one side or the other. Nothing in writing. That strikes me as a problem.

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squinney wrote:

I'm picturing a large building with many offices. Telling him not to enter the office (place of business), while telling him to come get his guitar downstairs... Does that violate the trespass law, Debra?

I have no idea because I don't know the layout of the building or how many tenants may occupy it. If the law firm occupies the entire building, then he ought to be extremely reluctant to enter. Maybe there's a lobby "downstairs" and the lawyer may intend to just chuck the property in the lobby. If that's what the lawyer does, he is violating a duty to safeguard property:

Quote:

1.14 Safekeeping Property

(a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyers possession in connection with a representation separate from the lawyers own property. Such funds shall be kept in a separate account, designated as a trust or escrow account, maintained in the state where the lawyers office is situated, or elsewhere with the consent of the client or third person. Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(c) When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately.

Comment:

1. A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate from the lawyers business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities. Paragraph (a) requires that complete records of the funds and other property be maintained.

2. Lawyers often receive funds from third parties from which the lawyers fee will be paid. These funds should be deposited into a lawyers trust account. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyers contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds should be promptly distributed to those entitled to receive them by virtue of the representation. A lawyer should not use even that portion of trust account funds due to the lawyer to make direct payment to general creditors of the lawyer of the lawyers firm, because such a course of dealing increases the risk that all the assets of that account will be viewed as the lawyers property rather than that of clients, and thus as available to satisfy the claims of such creditors. When a lawyer receives from a client monies that constitute a prepayment of a fee and that belongs to the client until the services are rendered, the lawyer should handle the fund in accordance with paragraph (c). After advising the client that the service has been rendered and the fee earned, and in the absence of a dispute, the lawyer may withdraw the fund from the separate account. Paragraph (c) does not prohibit participation in an IOLTA or similar program.

3. Third parties, such as clients creditors, may have just claims against funds or other property in a lawyers custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.

4. The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal service. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.

5. The clients security fund in Texas provides a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer.

http://www.txethics.org/reference_rules.asp?view=conduct&num=1.14

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realjohnboy wrote:

I have reviewed a number of pages here, looking for some kind of reference to something that was written down on paper. Can't find anything. Ephemeral evidence to support one side or the other. Nothing in writing. That strikes me as a problem.

The thread is entitled "VERBAL lease agreement." There was no written lease agreement. There were no written terms that would alter or vary a landlord's obligations under statutory landlord / tenant law.

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I know that, Debra. But nowhere in the process afterwards has anything been written down. The threats to do this or do that. Nothing in this story has seen one scrap of paper between the parties written down and exchanged between them. If I were Judge Johnboy, I would would be inclined to throw the whole thing out. Who said what to whom, and when, is not supportable by any credible evidence.

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realjohnboy wrote:

I know that, Debra. But nowhere in the process afterwards has anything been written down. The threats to do this or do that. Nothing in this story has seen one scrap of paper between the parties written down and exchanged between them. If I were Judge Johnboy, I would would be inclined to throw the whole thing out. Who said what to whom, and when, is not supportable by any credible evidence.

Echi wrote her a letter of demand. Re: Security Deposit / Property. After she received the letter, she got the lawyer involved.

Echi wrote her attorney a letter outlining the details of the dispute concerning the security deposit and his personal property. Echi cited the statutory law that was posted on this board. He hand-delivered the letter to her lawyer on the day he met with him in his office. The lawyer laughed at the letter, criticized its contents, and stated he questioned Echi's intelligence.

So, there is written documentation to establish that a dispute exists over the security deposit and Echi's personal property. Why would the friend/landlord retain a lawyer's services if no dispute existed? There are also the voice mail messages from both the landlord and the lawyer. Echi also recorded a phone call that he received from the lawyer. There is plenty enough to establish the existence of a case or controversy.

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I think, but am not sure, that Echi's a "he."

Echi, have you had more luck finding a local attorney? I have no particular reason to doubt DebraLaw and I wouldn't be surprised if she's giving you good advice, but the stakes seem to be getting higher the further along this goes and I'm intrinsically concerned about the lawyer-via-internet aspect.

A2K says:

Quote:

E. THIS SERVICE DOES NOT PROVIDE LEGAL ADVICE. All of the service's content, including postings, is for informational purposes only. The service is not intended to be a substitute for professional legal advice, and no attorney/client privilege is to be inferred from any postings herein. Always seek the advice of a qualified legal professional with questions you have regarding a legal matter. You should not disregard professional legal advice because of something you have received from or read in the Able2Know service.

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squinney wrote:

I'm picturing a large building with many offices.

That's correct. I don't know if they control the entire building... it appears that they occupy only a single office space on a single floor.

sozobe--
I understand your concern. I know that any advice/information that I take from A2K is at my own risk and that it's my responsibility to check out all the facts, etc.

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sozobe wrote:

I think, but am not sure, that Echi's a "he."

No ovaries... You remembered!!
Razz

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sozobe wrote:

I think, but am not sure, that Echi's a "he."

Echi, have you had more luck finding a local attorney? I have no particular reason to doubt DebraLaw and I wouldn't be surprised if she's giving you good advice, but the stakes seem to be getting higher the further along this goes and I'm intrinsically concerned about the lawyer-via-internet aspect.

A2K says:

Quote:
E. THIS SERVICE DOES NOT PROVIDE LEGAL ADVICE. All of the service's content, including postings, is for informational purposes only. The service is not intended to be a substitute for professional legal advice, and no attorney/client privilege is to be inferred from any postings herein. Always seek the advice of a qualified legal professional with questions you have regarding a legal matter. You should not disregard professional legal advice because of something you have received from or read in the Able2Know service.

Hopefully, information shared on this board will educate members so that they are "able2know" things that they wouldn't otherwise know and become smarter consumers of legal services. All those in favor of hiring the landlord's lawyer the next time they need "professional legal advice" from a "qualified legal professional," say AYE!

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(silence...)

All opposed?

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I think it would be informational and educational to discuss the civil tort known as breach of fiduciary duty.

For example, let's start with Rule 1.14 of the Texas Disciplinary Rules of Professional Conduct (posted earlier). Paraphrasing, when the lawyer takes possession of property belonging to a third person (meaning, persons other than a client), the rule requires the lawyer, upon request by the third person, to PROMPTLY deliver the property that the third person is entitled to receive. The lawyer may have a duty under applicable law to protect such third-party claims to property in his possession against wrongful interference by the client. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. The obligations for safekeeping property belonging to third persons and delivering it to third persons upon request are INDEPENDENT from his obligations arising from the rendering of legal services. A lawyer should hold property of others with the care required of a professional fiduciary.

Now, lets's examine the chapter on Landlord Liens:

Sec. 54.044. SEIZURE OF PROPERTY.

(a) The landlord or the landlord's agent may not seize exempt property and may seize nonexempt property only if it is authorized by a written lease and can be accomplished without a breach of the peace.

Assume we are dealing with "nonexempt" property. If a lawyer, acting as a landlord's agent, does not have authorization by a written lease to seize the property and to hold it in exchange for unpaid rent (or to hold it in exchange for a signed waiver of claims against his client), then he has NO LEGAL AUTHORITY to hold it when the third-party owner of the property requests that the property be returned. Under Rule 1.14, the lawyer must promptly deliver the property to the third person. His obligation under this rule is independent of any obligation he may have to his client. The lawyer's refusal to promptly deliver the property upon request to the third person violates the lawyer's obligation to use the care required of a professional fiduciary. Accordingly, the third party may have a claim against the lawyer for breach of fiduciary duty. Actual and punitive damages are available to a plaintiff who successfully pleads and proves a breach of fiduciary duty claim. "In fact, the reasons for imposing punitive damages on an errant attorney are even more compelling than those where a non-attorney breaches fiduciary or other tort duty to a plaintiff." (Source of quote: Findlaw Article)

The above is for informational purposes ONLY. See discussion forum disclaimer posted by Sozobe.

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squinney wrote:

....
Meanwhile, your guitar is somewhere downstairs, no longer in his care or the care of his client. I imagine Debra will next tell you that they will be responsible for its loss or damages, and provide the statutory backing for that claim. Reasonable care has to be provided when in posession of someone elses property. They can't just leave it somewhere out of their control, and they have to tell you where it is.

Geesh. I wouldn't want to hire this guy.

Thanks for clarifying, Debra. I don't query as well as I used to and I knew you would have it at your fingertips.

Per the comment earlier sbout lack of a paper trail... Judges are asked to make decisions all the time on cases with little or no paper / documentation. Even with no paper, inferences can be drawn as to how the guitar ended up in the lobby of the attorney office building. If they were to appear before a judge and tell their stories without paper, Echi's would be believable based on the attorney having posession. What are the friend and attorney going to say that would make their story believable to the judge when there are people that have seen the guitar with the attorney?

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On Monday, I mailed a letter to the attorney (and copies to his bosses) requesting that he make arrangements, in writing, for me to pick up my property. I hope to hear back from him today.

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Did you receive a response? Did you get your property back?

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Debra Law wrote:

Did you receive a response? Did you get your property back?

He sent me two certified letters (one that just contained copies of all our written correspondence, including a copy of the waiver) and two first class letters (again, one of those was just a bunch of copies).

The letter did inform me on where I could go to retrieve my property, which I did immediately. Everything is in good condition. I'm very happy to have it back!

He stated in the letter that he left my belongings with the building management, (located six floors above his, not "downstairs", as his voice message indicated), and that the person he made the arrangement with now "feared for her safety". After reading this, I thought it wise to call ahead and ask the building management if I could come right over and get my stuff. When I got there and said who I was the poor receptionist lady seemed extremely uptight and apprehensive. I tried to set her at ease by being extra polite and respectful, but this may have just made me look like one of those "ticking time-bomb" weirdos, esp. since I'm 6'3" and 185 lbs. She asked to see the attorney's letter and my ID, and I left with my guitar--no problem.

His letter also states that the reason he didn't give me a copy of the waiver, before, was because he felt threatened and wanted to get me out of his office as soon as possible. (More of his nonsense... I already had a copy of the waiver in my hand, and he had a copy in his. Why might I become more "disruptive" should I be allowed to take this with me, as I had requested?)

He continued the letter with more threats, lies and insults... He completely mischaracterized the entire chain of events, and his letters are riddled with obvious inconsistencies (like referring to events that occurred AFTER the date on the letter).

He also said in the letter that he is going to file a restraining order against me to protect himself, his firm, his client and her two little girls. So, I guess I'm awaiting some kind of notification on that.

Oh, and he repeatedly accused ME of "egregious behavior" and using "intimidation tactics" against HIM (like sending copies of my letter to his boss, for example).

I will gladly elaborate on any of this, if anyone wishes. You're welcome to see it all.

(I consider the matter between me and my "friend" to be resolved. I know she did what she thought was right, and I hope we can soon put this behind us.)

What I really need now is to find out how strong a case I have against this attorney and then find someone to represent me. All information will be very much appreciated. You guys have been great.

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echi wrote:

and I left with my guitar--no problem.

(I consider the matter between me and my "friend" to be resolved. I know she did what she thought was right, and I hope we can soon put this behind us.)

I am glad you got your guitar back. In some earlier posts I suggested that you and your friend get this behind you and move on.

I did not mean to suggest that you stop going after this lawyer. He sounds like a real jerk at best and on thin ice ethically at worst - if we accept your version of the events. You are collecting some nice written documentation.

Might there be, Debra Law, a Bar Association Ethics Board, on the local level, that he can call on?

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