Firing Your Lawyer (and hiring a new one): Can You Do It?
Published On: February 7, 2010
Note: This story has been fictionalized and all persons appearing in this work are fictitious. Any resemblance to real people, living or dead, places or events is entirely coincidental.
What If I Want to Change Lawyers?
Dan P. called my office and asked to speak with a lawyer – he got me. We chatted for a few minutes during which time he scratched the surface of his difficult, painful and frustrating story.
Mr. P. is a South American immigrant who, along with his wife and other family members, came to this country to raise his family of four. For many years he went to night school while working as a busboy to support his family. Eventually, through hard work and sheer determination he earned his Bachelor of Science and Masters in psychology. By the time that I spoke to him, he had been in the United States for 28 years, was a clinical psychologist and adjunct professor at a local university.
He had built quite a reputation in his community and was sought after as a public speaker. Mr. P. took great pride in his appearance including his winning smile.
How Mr. P. Was Injured
One evening he attended a lecture at a large venue. When the lecture was over he discovered that he couldn’t remember exactly where he parked his car. Since it was raining outside, he decided to hop a ride in a courtesy golf cart to help him find his car.
The parking lot covered acres of ground. The roads within the lot were nicely paved and well-lit and were bordered by large, unlit grassy knolls. The golf car likewise did not have lights.
Manning the golf car was a young fellow – let’s call him “Bobby” — with a bit of the daredevil in him. Bobby decided the quickest way to the other side of the parking lot was through the grassy knoll. Unbeknownst to him and to Dan, there were rope barricades on the grass – i.e., keep off the grass! However, in the darkness, he didn’t see these barricades which, quite significantly, were stretched wide and held taut by metal jammed into the ground.
Well, as Bobby drove the cart at breakneck speed through the grass, he struck a rope with the front of the cart. The stanchion came flying out of the ground, striking Dan P. in the mouth and knocking out four front upper teeth.
Dan was rushed by ambulance to the hospital where he was examined by emergency room doctors. His mouth required excruciatingly painful stitching. He was sent home disfigured and in pain.
Dan P. Hires a Lawyer
Dan hired attorney Charles B. to represent him for his injuries and damages. Mr. B. properly filed a lawsuit for damages against the property owners, Bobby and the organization for whom Bobby worked. The property owners were sued under a theory of Bobby under the theory of Bobby’s employers under the theories of negligence.
What Was Mr. P. Suing For?
As you know, Dan P. was a distinguished professor of psychology and sought after public speaker. However, what you might not know is that Dan donated most of his money to various charities – he was grateful for the opportunities that he received here in America and made it is life’s ambition to give back even more than he received to society. So, not surprisingly, Dan had no savings and could not afford the dentures or dental implants that he so sorely needed.
For obvious reasons, he could not continue to speak publicly. His shame and humiliation forced him into a depression and he was unable to teach.
There are two types of damages which apply in Dan’s case: Special damages and general damages.
Special damages are those that are quantifiable such as past, present and future medical bills and loss of earnings.
General damages are for past, present and future physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc.
Mr. B. properly sued for these damages in an unspecified amount (which is appropriate in California).
What Happened Was Pretty Standard Until Lawyer Mr. B.…
The matter proceeded through the normal course of litigation. As in most personal injury cases, a mediation was conducted in an attempt to settle the matter before going to trial. As far as the client Mr. P. knew, the matter did not settle at mediation – after all, he was present there and should know!!!
However, a few days after mediation, Attorney Mr. B. accepted an offer without P.’s authorization! This is a huge no-no. Aside from being in poor taste, it is an ethical violation.
Although the offer was for a large sum of money it was, in the client’s opinion, insufficient to compensate him for the harm that he suffered.
So he came to me to discuss this seemingly untenable situation. He wanted to know if he was allowed to switch horses in midstream and, if in so doing, he would owe fees to both his original lawyer and his new lawyer.
There was another potential major issue involved here but I wanted to first address his pressing concerns.
Can A Client Change Lawyers While A Case Is Ongoing?
Yes! This is America, land of the free. An attorney-client relationship is contractual relationship, akin to an employer-employee relationship, where the client hires the attorney to represent him or her. If the client is dissatisfied, they are certainly welcome to go elsewhere.
Dissatisfaction, of course, is a matter of degree and perception and can rear its ugly head in many different ways. There have been many other instances where I’ve been approached by another lawyer’s dissatisfied client and, after a thorough analysis of their situation, I didn’t accept their case. In most situations I realize that their lawyer is doing a good job for them, explain my reasoning and tell them that they should try to work it out with their present lawyer.
In Mr. P.’s case, though, it was my belief that he was justified in wanting to find and retain another attorney and I was willing to take his case. He needed someone who was willing to go to the mat for him.
Would He Owe Fees to Both Attorneys?
Fees in personal injury cases are usually done on a contingency basis. If a client fires one lawyer and hires another, the fee remains the same. Once the case resolves, either by settlement or judgment, the lawyers will work out a fee split based on what we call “quantum meruit.” All of this comes out of the proceeds of the case and does not in any way affect the client’s bottom line.
For example, if a case resolves for $250,000 and Lawyer #2 charges a fee of 40% or $100,000, then that is the total fee for the case. Immediately upon assuming representation of the client, Lawyer #2 should contact Lawyer #1 and ask him or her for a breakdown of the time devoted to this case and at what reasonable hourly rate and an itemization of his actual costs.
So, if Lawyer #1 legitimately has 20 hours in the case at $325 an hour, then he will be entitled to $6,500 (quantum meruit) plus his costs (separate and apart from the fee). Lawyer #2 will take the $6,500 out of his fee and will a net of $93,500 in attorney’s fees. There is absolutely no financial penalty to the client for changing lawyers!
The Other Potential Major Issue Facing Dan P.
I explained to Mr. P. that by switching attorneys mid-stream because he didn’t like the offer that was accepted not by him but by his attorney, the offering party was going to be angered. After all, it was their justified belief that a settlement had been reached and everyone could put the matter behind them. Armed with this information, and in spite of the potential negative response by the defense, Mr. P. decided to go ahead and retain me.
I notified Sandra C., the defense attorney, of the following: that there was a misunderstanding, Mr. P. did not authorize the settlement, that I was stepping in as his new lawyer and we would have to commence further negotiations.
Oh, wow, was she upset! Her client, the defendants’ insurance company, cut their offer by 60% and basically told me to pound sand. A new battle had begun! The motions started flying and it looked like no settlement was in the offing. Moral thus far: It’s not nice to fool Mother Nature.
We began to prepare for trial. Expert witnesses were retained, more depositions taken, more written
discovery was exchanged.
Shortly Before Trial in the Judge’s Chambers
The best part of this situation, though, was the defense attorney’s comment in the judge’s chamber during the Mandatory Settlement Conference two weeks before trial. She said “Well, Mr. P. didn’t have such great dentition in the first place. Sure, we knocked out his teeth but they would have fallen out in the next couple of years anyway. In fact,” she said, “this is what our dental expert will testify to.”
Of course I was in legal heaven at this point. “Have at it,” I thought. What jury is going to go along with such baseless vitriol? Juries do not like to see the injured victim attacked – especially one like Mr. P., a family man who worked his way up from busboy to adjunct professor. I was going to have fun at trial.
Defense Comes To Their Senses
Unfortunately, though, the defense came to their senses about 10 days before trial by way of a very powerful tool, the Statutory Offer to Compromise (per California Code of Civil Procedure Section 998) and increased their initial “accepted” offer by almost double. Mr. P. decided to take it instead of risking the uncertainty of trial.
When Can A Client Switch Lawyers?
A client can switch lawyers anytime he or she wants to. Although the client need not have actual grounds for dismissing his or her attorney and retaining someone else, here are some common situations that a client may encounter upon which the change is predicated:
- An attorney’s conflict of interest
- Differing case strategies or personality conflicts
- A change in the pleadings or parties of the case
- A change of the court hearing the case (change invenue)
- Expanded legal needs
Whatever the reason, it is important that the client inform their current attorney of their intention to move on. This can be done by certified letter, e-mail or, as often happens in personal injury cases, the new attorney will notify the former attorney that they are now representing the client.
Further, if a lawsuit has already been filed in the case, the court must be notified of the new representation by way of a Substitution of Attorney Form signed by the client, his/her former attorney and the new attorney.
Mr. P. was not dissimilar in his discomfort in notifying his soon-to-be former attorney that he was retaining new counsel. Therefore, at his request, I notified the former attorney and asked him to send me Mr. P.’s entire file immediately which, of course, he did.
Does the Former Attorney Have Continuing Duties to the Client?
In a word, “yes.” Immediately upon termination of the attorney-client relationship, the attorney’s actual authority to act on the client’s behalf is terminated. However, he or she still has several continuing obligations to the client:
- Protecting the Client’s Interest:If the client has not already found a new attorney, the soon-to-be-discharged attorney must explain the potential consequences of ending the relationship to the client, help find another attorney to handle the case, and return the client’s property and papers to the client. If the client has found another attorney, then the property and papers must be delivered without delay to the new attorney.
- Complying With Deadlines:If imminent deadlines are facing the client, the attorney may be required to get the court’s permission to extend the deadline or continue representation so that the deadline will be complied with.
- Protecting Confidential Information:Protecting the client’s confidence continues even after representation ends!
- Treating the Client Fairly: The former lawyer cannot use information obtained through the attorney-client relationship to take unfair advantage of the client.