Lax Lawyer

Q. We recently hired an established lawyer to help us close on a house. Due to the pressures of other jobs, her work was so substandard that we were worried we might not make the deadline set by the sellers. We had to find a new lawyer in the middle of the process, which cost us a lot of additional money. Can we deduct the extra expense from the first lawyer's bill?

A. Every workman wants to give every customer the best possible service. Unfortunately, due to unexpected pressures and deadlines, sometimes even qualified professionals may fall short of their peak performance. When the client is disappointed, the natural question is whether it's possible to break the contract, and whether full payment is required.

Of course there are different levels of performance. There is excellent service; poor but adequate service; and there is simply not getting the job done.

If the professional is clearly not getting the job done, and time is of the essence, then Jewish law states that the negligent worker has the lower hand. Even though a worker may generally quit in the middle of a job, she may not decide to do so if it puts the employer over a barrel and involves him in a loss. And not getting the job done is tantamount to quitting.

This means that any additional costs which are due to her negligence may be deducted from her bill. In your case, your total bill would be whatever you promised the first lawyer; if the second lawyer charged less than this amount because of the head start due to the first lawyer's work, then the first lawyer would get only the remainder. (Example: first lawyer quoted $1000; second lawyer charged $600 to finish the partially begun job. The first lawyer would get only $400.)

At the other extreme, if the professional's work meets generally accepted standards, even if it is below this individual's usual level, it's hard to justify breaking the contract. In this case it would be the client who would have the lower hand. It's not the professional's fault that the client will settle for nothing less than perfection. In this case the client would have to make sure that the payment for the interrupted job is enough that it doesn't cause any loss to the professional. (Example: she quoted $1000; you fired her when she had only four hours of work left, and she usually gets $100/hour; she can recoup $400 by working those four hours, and you have to repay her $600 to make up the full amount promised.)

What you seem to describe is an intermediate situation between these two extremes: the professional's work is below accepted standards, but not necessarily inadequate to fulfill the basic commitment. You have justifiable worries that the job may not get done, but you can't really prove that the lawyer won't come through after all.

In this case, if the problem continues after the client has given the worker an explanation and a chance to correct it, the client is justified in discontinuing the worker -- but the worker deserves to get full pro-rata payment. Your lawyer is due whatever she is normally paid for the services she provided. Since her work was probably enough to get the job done, you can't make her responsible for the extra costs you encountered to obtain a truly first-rate job. (Example: she quoted $1000; she accomplished half of the work, even if in a mediocre fashion; you would owe her $500.)

SOURCES: Shulchan Arukh Choshen Mishpat 306:8, 333:5; Pitchei Choshen Sechirut 10:(18), 10:(24).