Q: How do I collect fees owed me from an attorney who won't pay? (Virginia)
I worked as an expert witness for an attorney. His client disagreed with my expert report and refused to pay the lawyer who retained me. He says he can't pay me unless he sues the client for payment, which he doesn't what to do.
Can I complain to the Virginia Bar? Or is a civil suit against him the only recourse I have?
A:
Typically, when an attorney hires an expert witness, he is hiring the expert for a particular litigation matter for a specific client. Unless the expert and the attorney expressly agree otherwise, the attorney is acting as an agent for the client whose identity is usually disclosed to the expert witness. As with any other agency situation, the client--who is the principle--is legally responsible to the expert for the expert's fees because the client is a "disclosed principle" unless the attorney was acting without the client's authority (which would be extraordinarily rare). Because the attorney was acting merely as an agent, the attorney is not legally responsible for fees for the expert's work on the client's behalf.
Some experts include language in their engagement agreements which expressly provide that the attorney personally guaranties the expert's fees, but most attorneys will not sign such an agreement.
Some experts include language in their engagement agreements which expressly provide that they are being retained by the attorney, not by the client, but only a very inexperienced attorney would ever sign such an agreement because it will be used against the expert in their testimony to argue that the expert is only saying what the attorney is telling them to say.
So, in most circumstances, you would need to sue the client, not the attorney.
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