# Solicitor making veiled threats



## deviant (5 Dec 2013)

Hi there

I did some occasional work for a solicitor over the past 3 years, adding content to his website. I didn't sign a contract, and there was no formal agreement of what I'd be doing, as it was work handed-over to me from someone else and it wasn't supposed to last very long.

Over time he got me to do a few more things, including managing his website SEO and Google AdWords. Last summer there was a very large (about 10K) overspend on his AdWords account over the course of about 2-3 months, which was actioned through the gmail account I used to administer the AdWords.

How it happened I have no idea as I didn't adjust the limits, but in any case, as it went through my email account, he's holding me responsible, and he now wants me to continue working for him at a reduced rate and "work off" the deficit. He said "I could sue you, but I won't" which is a veiled threat obviously. I tried to stand my ground, saying that I'd have to no reason to do it, and that I couldn't possibly accept such an arrangement.

I'm just wondering, could he actually sue me, and how should I proceed?

Thanks


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## Jim2007 (5 Dec 2013)

Well yes he could take proceedings against you, but whether or not he would be successful is up to the courts.

The fact that the overspend was created using your email account and that it occurred over several months does not look good for you… 

As an IT professional you should be well aware that accounts can be hacked and you should be monitoring for such things. Furthermore as you were managing his AdWords, one would expect that you would have noticed this as it did not just happen over night.

And finally given all the statistics produced by AdWord and Google Analytics you should be able to explain how it occurred…

Certainly if you ran up a 10K bill on my account and were unable to explain it, I'd be up in arms too.  I'd said he is offering you a reasonable way of working this out.

Whether he is a solicitor or not is not even relevant to this issue.  Expecting someone to write off 10K because you screwed up is not on.


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## deviant (5 Dec 2013)

Some points to add would be that I am not a digital marketer or SEO consultant by profession whatsoever. My actual job prevents me from committing more than a few hours a week to him. He hired me because I'd charge him €18 per hour rather than the multiples of that he'd pay a consultant. As I said, there was no contract or formal definition of what I was expected to do, etc. I just did whatever he asked when he asked, and that was it.

I am aware accounts are hacked, but the account I used to administer the AdWords is not my personal one, so I wouldn't be dipping into it for any other reason than to tweak his AdWords. Besides, when I say "manage", I mean very occasional keywords added and removed, and the odd report printed off. I wasn't monitoring costs daily or even weekly as I was assuming the spending limit was working, and neither was he clearly as he only noticed the overspend after the third month on his credit card even though AdWords has a 30 day billing cycle.

I'd be afraid that if I entered into any arrangement with him, he'd try to abuse it and squeeze as much work out of me for a year as possible and then still throw a suit my way. 
I'm waiting on advice from another solicitor before I decide what I'm going to do.


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## Jim2007 (5 Dec 2013)

The thing is that you don't have to have a signed contract, the fact that you have been doing work for him for the past three years and he has been paying you is evidence of a business relationship....

Here is a thought, I wonder if there is any chance you could argue that you were in fact a casual employee and as such he should have been supervising you, rather than relying on your expertise... And that would also mean he should have had you on payroll etc..

The thing is it could get very messy and if he does win it could cost you 10k plus the legal costs on both sides, where as if he looses it will cost him very little because it will be a DIY job.

Hopefully you legal advisor can come with some good news for you.


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## Purple (6 Dec 2013)

Jim2007 said:


> Here is a thought, I wonder if there is any chance you could argue that you were in fact a casual employee and as such he should have been supervising you, rather than relying on your expertise... And that would also mean he should have had you on payroll etc..



 think that's a good idea.


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## deviant (6 Dec 2013)

Hi folks

Thanks for your advice. The casual employee argument is a good idea. This is all hypothetical of course at the moment, but I just don't know what he might do next - he might do nothing, he might not I don't know. I'm waiting to hear back from a couple of an advisor at the moment either way.

Thanks


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## T McGibney (6 Dec 2013)

Jim2007 said:


> Here is a thought, I wonder if there is any chance you could argue that  you were in fact a casual employee and as such he should have been  supervising you, rather than relying on your expertise... And that would  also mean he should have had you on payroll etc..



I think its a very bad idea. There is no evidence of an employer/employee relationship here. No sane employer permits their employee(s) to organise their Google Adwords, or anything else relating to their business, via the employee's personal email account. No sane employee does so either. The OP is in an awkward situation here, which could be worsened considerably if they falsely claim at this late stage to have been an employee all along. Presumably the earnings were treated as being from self-employment on their tax return?


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## Purple (6 Dec 2013)

Can you get to the bottom of why the spend was so high?
That might sort the whole thing out.

You should also ask yourself why you are working for such a dodgy character.


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## Purple (6 Dec 2013)

T McGibney said:


> I think its a very bad idea. There is no evidence of an employer/employee relationship here. No sane employer permits their employee(s) to organise their Google Adwords, or anything else relating to their business, via the employee's personal email account. No sane employee does so either.



The OP is not a business and there is no contract. The default position is that they are a casual employee.


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## T McGibney (6 Dec 2013)

Purple said:


> The OP is not a business and there is no contract. The default position is that they are a casual employee.



That isn't the case. If I get a plumber in to repair a leak, or an IT person in to resolve a network issue, they are most certainly not my employee by default - even if they are paid by the hour.


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## Neg Covenant (6 Dec 2013)

You need to get all the facts together for the solicitor you are going to meet.
- Who had access to the account?
- Can a log of account access be obtained from Google?
- What were the charges actually for?
- Who entered into the adwords contract?
- What do Google say about it? If there was fraud, are they willing to write off any of the amount?
- What do the terms and conditions of the contract with Google say?

Somebody is up to no good. You should probably ask your solicitor whether the matter should be reported to the Gardai. If you are clean as a whistle and the guy is claiming he was defrauded then this seems like the right thing to do.

What I find peculiar is that he is still willing to work with you at all if he thinks you might be dishonest. It sounds like he thinks you made a mistake that cost him, i.e. that you spent money without his authorisation in error. Is that the case? Are you giving us the full story??


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## Deas (6 Dec 2013)

T McGibney said:


> I think its a very bad idea. There is no evidence of an employer/employee relationship here. No sane employer permits their employee(s) to organise their Google Adwords, or anything else relating to their business, via the employee's personal email account. No sane employee does so either. The OP is in an awkward situation here, which could be worsened considerably if they falsely claim at this late stage to have been an employee all along. Presumably the earnings were treated as being from self-employment on their tax return?


 

I'd agree.  To be shown to be an employee needs to be tested and control would be a test.  Given you seem to be employed elsewhere, it is unlikely that the solicitor had control over your time or what you did with it.


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## Sunny (6 Dec 2013)

I don't suppose you have professional indemnity insurance considering you were doing contract work albeit without a contract?

I don't really get what he is going to sue you for. There was no fraud or theft. Doesn't look like he can prove you maliciously caused the loss. Even if he sues you for incompetence, I can't see it succeeding. I would call his bluff and tell him to sue.


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## Gerry Canning (6 Dec 2013)

Sunny; 

Mr Solicitor might be miffed but I agree with you, what exactly is Mr Solicitors  grounds for suing?
Is it , That he wanted work on the cheap and when cheap cost him he cries wolf !


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## Purple (9 Dec 2013)

T McGibney said:


> That isn't the case. If I get a plumber in to repair a leak, or an IT person in to resolve a network issue, they are most certainly not my employee by default - even if they are paid by the hour.



This wasn't a once-off engagement.


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## Setanta12 (9 Dec 2013)

Seems to me that this won't be resolved on this forum.  The OP needs professional advice for which he will clearly pay hand-over-fist for to resolve the issues above.

My advice to the OP is; don't take on any jobs on the cheap anymore unless you can control them entirely, secondly - don't take advice from one side here when clearly there are strong opposing opinions.  

As I see it, you have two choices;
- go down the legal costly route
- come to some accommodation with th solicitor for the extra work required.  How many hours for what services, who judges quality of work done etc.

(As an aside, have you paid taxes on what you were meant to earn here?  Although this, in and of itself, doesn't lend support to contract-for-services  / contract-of-services debate)


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## T McGibney (9 Dec 2013)

Purple said:


> This wasn't a once-off engagement.



So? 

Many people repeatedly engage the same plumbers, handymen, IT repairmen. It doesn't make them all employees of the householder or business who engages them.


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## Jim2007 (9 Dec 2013)

Sunny said:


> I don't really get what he is going to sue you for.



The client was charged 10K for advertising, based on instructions issued from an account under the control of the OP and for which the OP is unable to account for...

Given the circumstances I would think the client's proposal is not unreasonable...


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## AlbacoreA (9 Dec 2013)

deviant said:


> ....there was a very large (about 10K) overspend on his AdWords account over the course of about 2-3 months, which was actioned through the gmail account I used to administer the AdWords.
> 
> How it happened I have no idea as I didn't adjust the limits, ....



Does the client have password for this account? Does anyone else?

Who actioned it.


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## Sunny (9 Dec 2013)

Jim2007 said:


> The client was charged 10K for advertising, based on instructions issued from an account under the control of the OP and for which the OP is unable to account for...
> 
> Given the circumstances I would think the client's proposal is not unreasonable...


 
But again, what are you suing for? No theft. No fraud. The OP didn't benefit financially. It doesn't look like the OP accessed an account that he wasn't supposed to have access to. The OP didn't try to hide anything. The OP can't explain how it happened. Can the Solicitor? 

It sounds like it was a very informal relationship so any negilence on the OP's side is probably matched by negligence on the Solictors side. Anyone who allows employee/contractor to change limits or spend money and not have controls in place really isn't in a position to sue.


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## deviant (9 Dec 2013)

Hi all

Thanks for your responses. I've contacted a solicitor. The advice I've been given is that the solicitor concerned would have to issue debt proceedings against me, but it would not be clear cut in any way, and that it would be  a very messy one for him to win.

The fact that I worked for this individual for nearly 3 years means I could reasonably be considered a part-time employee rather than a contractor, means that the duty of care requirement is different, and it would essentially mean that the individual would be suing himself. That I was approached to do this and not the other way around is relevant too as I never made a claim to being an expert in the area I was working in.

The fact I'm not a property owner and don't have the amount of money in question lying around would mean the solicitor would basically be throwing good money after bad to get it off me.

All in all he said there's a very good chance if a summons was issued, I'd walk away unscathed, so I should just not reply to any texts or calls and wait to see what he does next.


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## T McGibney (9 Dec 2013)

Have you contacted Google to see if they can refund the excess spend?


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## deviant (9 Dec 2013)

T McGibney said:


> Have you contacted Google to see if they can refund the excess spend?




He contacted Google when he discovered it, I presume he put that to them and was unsuccessful


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## Time (9 Dec 2013)

Do you intend working for him again?


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## Jim2007 (9 Dec 2013)

Sunny said:


> But again, what are you suing for? No theft. No fraud.



Do you actually understand how Adsense works and the kinds of fraud that can carried out if you've got someone with access to an Adsense account as a player???  The fact that there is a 10k charge that the OP can't account for is like a bank teller or a check out person telling you that 10K has gone missing from their till, but it's nothing to do with them - it just magically happened all by itself!


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## deviant (10 Dec 2013)

Jim2007 said:


> Do you actually understand how Adsense works and the kinds of fraud that can carried out if you've got someone with access to an Adsense account as a player???  The fact that there is a 10k charge that the OP can't account for is like a bank teller or a check out person telling you that 10K has gone missing from their till, but it's nothing to do with them - it just magically happened all by itself!



It's AdWords, actually. Not AdSense. Two completely different products. You can't defraud someone by bringing paying customers to their website.


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## Sunny (10 Dec 2013)

Jim2007 said:


> Do you actually understand how Adsense works and the kinds of fraud that can carried out if you've got someone with access to an Adsense account as a player??? The fact that there is a 10k charge that the OP can't account for is like a bank teller or a check out person telling you that 10K has gone missing from their till, but it's nothing to do with them - it just magically happened all by itself!


 
The bill was run up on Adwords. Not Adsense. Adwords is set up where there are daily limits or budgets in place so it shouldn't be possible to run up huge bills. If the solictor gave someone who a) wasn't an employee and b) wasn't a specialist contractor access to be able to change their limit or use expensive keywords without any controls in place, it is hard to see how the solicitor can sue saying that the OP breached their duty of care. The OP says he didn't change anything and maybe other people had access to the account. We don't know. 

There are numerous examples of people running up huge bills on adwords because of technical issues or because people didn't know what they were doing. It doesn't mean fraud or any other illegal activity occured. 

Also I don't get your comparison with a bank teller. Do you think a teller is allowed home every evening without accounting for the money in their drawer? A better comparison would be a bank manager getting their geeky friend who likes IT to come in and play around with their SWIFT system and then come back three months later asking about a few unauthorised payments that seem to have been made. 

Anyway it seems like the OP got proper legal advice so hopefully that is that.


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## Purple (10 Dec 2013)

T McGibney said:


> So?
> 
> Many people repeatedly engage the same plumbers, handymen, IT repairmen. It doesn't make them all employees of the householder or business who engages them.


Employing a plumber etc is a contract for service, not a contract of service. Where there's any ambiguity the default position is that an engagement is a contract of service. 
If you employ a child minder to work in your home on a casual basis over a number of years then they would be considered a casual employee, not a contractor. That's a closer analogy.


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## T McGibney (10 Dec 2013)

Purple said:


> Employing a plumber etc is a contract for service, not a contract of service. Where there's any ambiguity the default position is that an engagement is a contract of service.
> If you employ a child minder to work in your home on a casual basis over a number of years then they would be considered a casual employee, not a contractor. That's a closer analogy.



Its not really. Childminding in the children's home is invariably an employment because the parent/employer dictates to the minder/employee where they work is to be done, and because such engagements tend to be exclusive in nature, eg nobody else's kids being minded concurrently. 

The position with childminding outside the home is a lot less clear-cut. 

In this case if the terms of the solicitor/OP agreement specified that all work must be done on the former's premises at fixed times specified by them, this would support the argument that it was an employment. 

On the other hand if the agreement was that the work could be completed at any location and at variable dates and times to be chosen by the OP, with the OP free to take on other work concurrently, this would support the opposite conclusion.



Purple said:


> Where there's any ambiguity the default position is that an engagement is a contract of service.


This is clearly not correct, as a study of the burgeoning case law in this area will demonstrate. [broken link removed]


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## deviant (10 Dec 2013)

There are factors other than the location of the work to be taken into consideration in determining who is an employee or a contractor, 

The continuous  (2.5 years+) nature of the work
The fact I was expected to carry out the work myself i.e. I couldn't subcontract the work
Being paid by the hour
I was told what tasks and when to perform them
I worked only for him and my full time employer i.e. I didn't render services to the public 
I didn't have any financial exposure to a business
I had no final say in how a business was run

The solicitor I contacted told me that the above would make a very strong case for categorising me as a casual or part-time employee


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## Purple (10 Dec 2013)

T McGibney said:


> This is clearly not correct, as a study of the burgeoning case law in this area will demonstrate. [broken link removed]



The case you linked to concerned a claim for redundancy payments for Vets who were self employed in private practice but were contracted as veterinary inspectors in a meat plant that was closing.
That's  a world away from someone who is an employee in their day job working part-time/ casually for someone else.


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## T McGibney (10 Dec 2013)

Its still worth reading up on the case law, which is very interesting. The article I cited is a good starting point, as it lists & explains the key Irish cases to date.


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## Purple (10 Dec 2013)

T McGibney said:


> Its still worth reading up on the case law, which is very interesting. The article I cited is a good starting point, as it lists & explains the key Irish cases to date.



It is a good article and I agree it's not as clear cut as I implied.


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