Note: Attorneys have ethics rules on attorney solicitation, so don’t be surprised if you call an attorney while you already have one and the attorney you are thinking about hiring isn’t gung-ho about getting involved.
Despite having a written contingency fee contract with your lawyer, you can fire him or her at any time. Likewise, their contact should have a paragraph where they can also their representation.
However, depending on your reasons for firing the attorney, you may still owe a fee on your case. In most jurisdictions, if you do owe a fee, it will be based not on your contingency fee contract, but rather on quantum meruit (meaning “how much is merited”). Depending on when you fire your lawyer during the litigation, this can range from a relatively small sum up to the entire percentage you agreed to in the contingency fee contract.
If you hire a new lawyer after firing the old, there are circumstances under which you could wind up paying more than you would have with the first attorney. So, before you fire your lawyer, consider the odds of having to pay both attorney’s a fee, how much that fee might be, and how this will affect your overall recovery in the case.
Don’t Fire Your Lawyer Unless You Have To
Firing your lawyer should not be a decision made in haste, or in the heat of the moment. It should be a last resort, because it can often create more problems than it solves. Over the years, I’ve received numerous phone calls from plaintiffs who wanted to fire their current lawyers, and the vast majority had one thing in common — they had not had a face-to-face meeting with their current lawyers to address the issues which caused them to want to part ways. It seems like from these phone calls, a lot of personal injury plaintiffs at one time or another have doubts about their case and the law firm handling the claim. Usually this arises from a failure by the lawyer to effectively communicate with the client.
Your lawyer may be doing everything he should as far as your lawsuit is concerned, but if he fails to return phone calls or fails to explain why your lawsuit is taking so long, he or she can leave you with the impression that they don’t care about your case or isn’t pursuing it diligently.
The biggest “road block” I’ve seen here is when someone is still treating, but they’re wanting to get their case resolved. If the plaintiff is still treating (and thus incurring medical bills), settling early is a bad decision. The lawyer is likely waiting until treatment is completed to move onto the next step in the case.
If you need reassurance that your lawyer is moving your case along as they should, it is often helpful to schedule a phone conference (so there’s no chance of phone tag) or a sit-down meeting to discuss how your case is progressing (or why your case is being held up).
If you have a heart-to-heart with your lawyer and show him or her that you value their time, this will usually fix communication problems.
Of course, not every problem with your lawyer is a mere lack of communication. If your lawyer seems unprepared, such as at depositions or mediation, this is a legitimate cause for concern. If your lawyer “talked tough” at the beginning of your case, but now that it appears that you may have to go to trial, and the lawyer is folding like a cheap suit for an unreasonably low settlement offer, this is also a huge problem. These issues are usually something that can’t be fixed, so it is best to start looking for a new lawyer as soon as they arise.
If you are thinking of firing your lawyer, it’s a good idea to first have a meeting with your lawyer to air your concerns (I think of the Seinfeld Festivus Airing of Grievances) before terminating the attorney-client contract. If your lawyer cannot alleviate your concerns during this meeting, then by all means try to find another lawyer. Just know that firing your lawyer carries with it a lot of headaches.
Toward the end of this meeting, ask for a copy of your file, and a letter confirming that the representation has ended with whatever claim they are making for their fees and costs. I’ve had some law firms want to just be paid back any of the costs they’ve advanced (like getting medical records), while some feel entitled to a percentage of the fee they think they’ve earned. This is the absolute best time to find out what they think they are entitled to. A year later, if the case settles for a good amount, they may then hold up the disbursements.
If You Fire Your Lawyer, It May Be Harder to Find a New One
Finding a new lawyer after you’ve fired (or are ready to fire) your old one will likely be more difficult than hiring a lawyer from the get-go. Lawyers are wary of clients who’ve fired another lawyer. You could be an unreasonable “problem client,” or you might simply have a troublesome case. Even if the potential new lawyer blames the old lawyer for the firing, he or she may be reluctant to take a case that may have already been screwed up by that lawyer. Finally, the potential new lawyer may have concerns about you owing the old lawyer a fee. Your new lawyer could be faced with two equally distasteful options:
- Agree to take a smaller fee to offset the amount you may owe the old lawyer; or
- Take a full fee, and risk you not being willing to settle because of the amount you’ll have to pay to both lawyers.
This brings us to the million dollar question: Do you have to pay your old lawyer a fee, and, if so, how much?
Do I Owe a Fee to the Lawyer I Fired?
If you fire your lawyer without good cause (e.g., you have no complaint with your current firm, but you just decided that you’d rather have your son-in-law’s law firm take the case) you will likely owe the discharged lawyer a fee. Whether this fee will be the full amount of the contingency fee contract, or quantum meruit, will vary based on what work was done on the case. The majority of states hold that an attorney who is discharged before the contingency in the contract takes place (a monetary recovery), even without good cause, is only entitled to quantum meruit (and of course, because lawyers need to make things overly complicated, the issue of how this quantum meruit amount is determined varies).
If you fire your lawyer with good cause, the majority of courts will not allow the fired attorney to recover any fee. In a minority of states, most notably Texas, an attorney who is discharged even for good cause may recover a fee — in these jurisdictions, only when the attorney’s actions rise to the level of outright misconduct (usually a serious ethics violation), will the attorney be denied any fee.
What is “Good Cause” for Firing a Lawyer?
Anything that constitutes a serious ethics violation would easily qualify as “good cause” to fire your lawyer. For example, if your lawyer has a conflict of interest (e.g., he’s representing both the passenger and driver of a car in an automobile accident case against a third party, and it becomes obvious that the passenger should also sue the driver of the vehicle in which he was riding), if your lawyer asks you to lie (or even commit perjury) about your claim, or if your lawyer advises you to defraud your medical lienholders (e.g., lie to your health insurer about what injuries are related to the case), these would most likely be sufficient grounds to deny the fired lawyer a fee in every jurisdiction.
Unfortunately (for purposes of simplifying this article — fortunately for real world clients), clients rarely fire their lawyers for offenses so egregious. More often, a perceived lack of diligence by the lawyer (not moving your case forward as quickly as possible), a difference of opinion over the value of the case, or a lack of communication by the lawyer with the client for a significant amount of time will be the “good cause” for the lawyer’s discharge cited by the client.
Whether these actions, or inactions, rise to the level of good cause sufficient to completely deny a fired lawyer any fee (in the majority of jurisdictions which don’t require misconduct) will need to be determined on a case-by-case basis. This uncertainty about whether you will owe your old lawyer a fee is the main reason I encourage people to try to work it out with their lawyers before firing them. Neither you nor your former lawyer want to have to litigate the fee issue. It is a lot of extra work which neither of you need, which is why these disputes are usually compromised in all but the most contentious cases — this ironically creates the lack of caselaw which could help to remove the uncertainty for future lawyers and clients.
How is Quantum Meruit Determined?
If you owe the fired attorney a fee based on quantum meruit, get ready for more uncertainty. Most judges will apply a “totality of the circumstances” standard in determining what a fair fee is under quantum meruit. It could be a fee based on the average hourly rate of lawyers with similar skill and experience as the fired lawyer and the time expended by the fired lawyer.
Quantum meruit could be also be based on the percentage of the work done by the old lawyer relative to the amount done by a subsequent lawyer. If it’s likely that the fired lawyer will be entitled to quantum meruit fees, the court which decides such fees has an enormous amount of discretion in determining what amount is “fair.” You and your former lawyer will really be at the judge’s mercy.
Protect Yourself When Hiring a New Lawyer
Aside from doing a better job screening your new lawyer than you did in your last, you must be absolutely clear with the new lawyer how the fee will be determined in light of the fact that you may owe your old lawyer a fee.
The best deal for you would be if your new lawyer agrees to limit their fees to the percentage stated in the contract with the initial lawyer, minus the fees that you must pay to the old lawyer. With this type of arrangement, you are no worse off (at least as far as fees are concerned) than you were with the original lawyer.
Not all lawyers will agree to this, especially if the old lawyer may have a large fee claim. It would be in your best interests to discuss the possible fee arrangements with a new lawyer before terminating your old one so that you can weigh the pros and cons of firing the old lawyer more effectively.
It may be that you could come to some kind of compromise with the new lawyer, whereby your new lawyer agrees to limit his fees to the lesser of (1) the original contracted percentage, minus your old lawyer’s fees and (2) a fixed percentage of the total value of the case.
When to Fire Your Lawyer — Better Sooner Than Later
If you have made the decision to fire your lawyer, it is generally better to act upon it sooner rather than later. Allowing the soon-to-be-fired lawyer to continue to work on your case will only drive up the amount of fees to which he or she may be entitled to. Of course, I still recommend trying to work it out first, and checking with possible new lawyers to see what fee arrangement you face before telling your lawyer he’s fired.
However, you need to pursue these two steps quickly and diligently once you start leaning towards firing your lawyer. In other words, don’t be hasty in making the decision to fire your lawyer, but once that decision has been made, don’t wait to pull the trigger.
Liens the Fired Lawyer May Assert
If a lawsuit has been filed on your case, it is likely that the attorney included “Attorney’s Lien Claimed” on the petition. If this has happened, the insurance company will definitely know, and will wait for verification of the lien, before issuing any settlement payments. With most insurance companies, if the previous attorney has been in contact with them, will also wait to issue the settlement checks – or simply include that attorney on the settlement check. Obviously, this can delay getting your case finalized.
If you settle or win your case, and the defendant insurance company pays you without honoring the attorney lien, it may be liable to the former attorney for the full fee they ignored. For this reason, most defendants will want an assurance that the lien is dealt with (either paid or invalidated) before you get paid. They may pay the amount in dispute into the court (called an interpleader), which will then disburse the funds (to either you, your lawyer, or divided among both) when the fee dispute is resolved. In some cases, the defendant may accept an agreement by your current attorney to hold the disputed funds in their trust account until the fee issue is resolved.
Either way, the attorney lien is an effective way for your former lawyer to ensure that you don’t spend the amount you may owe him or her before the claim is resolved. Note that this lien only applies to proceeds from the lawsuit.
So Should I Fire My Lawyer or Not?
Only you can decide if your lawyer’s conduct warrants having to deal with the potential fee issues which will arise should you fire him or her. If this article gave you pause as to your decision to fire your lawyer, good. Fee disputes are a messy area of law. Even in states where the law is clear, issues regarding the amount of quantum meruit compensation to be awarded remain largely a matter for judges to decide on a case-by-case basis.
Before firing your lawyer, talk to a few prospective new lawyers to see how they feel about your odds of having to pay your old lawyer a fee, and what kind of deal you can expect from them if you will owe the old lawyer a fee.
Get a Copy of Your File
I mentioned this above, but if you fire your lawyer, get a copy of your complete file AND a letter from the attorney stating they no longer represent you and what their attorney fee claim is.