Note: Attorneys have ethics rules on attorney solicitation, so don’t be surprised if you call an attorney and they don’t sound gung-ho about getting involved while you already have a lawyer.
It’s also a “warning sign” if the client is unhappy with their current attorney. Personal injury cases are frustrating for the plaintiff to deal with. They’ve missed work and have medical bills piling up, and the civil courts can move slowly. Your case might appear to be moving slowly, but it’s not due to your current attorney slow playing anything. For example, if you are still receiving treatment from a car wreck that was two months ago, it doesn’t make sense to try to settle your personal injury claim. Settling before all of your medical bills are known is a good way to let the car insurance company pay less than a case is worth.
Despite having a written contingency fee contract with your lawyer, you can fire him or her at any time. Likewise, their contract should have a paragraph where they can also end 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 owe a fee, it will be based not on your contingency fee contract but 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’re trying to decide “how much is merited,” look at what case costs the law firm has incurred thus far, if the insurance company has made any offers to settle, and what negotiations have taken place.
If you hire a new lawyer after firing the old one, 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 paying both attorneys a fee, how much that fee might be, and how this will affect your overall recovery.
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 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 lawyer to address the issue(s) which caused them to want to part ways. From these phone calls, many 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 lawyer’s failure to communicate with the client effectively.
Your lawyer may be doing everything they should as far as your lawsuit is concerned. Still, if they fail to return phone calls or 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 are pursuing it diligently.
The biggest “roadblock” I’ve seen here is when someone is still treating but wants to resolve their case. If the plaintiff is still getting medical treatment (and thus incurring medical bills), settling early is a wrong decision. The lawyer is likely waiting until treatment is completed to move on to 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 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 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 usually can’t be fixed, so it is best to start looking for a new lawyer as soon as they arise.
Before terminating the attorney-client contract, it’s a good idea to meet with your lawyer to air your concerns (I think of the Seinfeld Festivus Airing of Grievances here). 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.
If you fire your attorney, get a copy of your file.
Toward the end of this meeting, ask for a copy of your complete file and a letter confirming that the representation has ended with whatever claim they are making for their fees and costs.
This should include all medical records/bills, correspondence to/from the insurance company, accident reports, witness statements, proof of any case costs, and if the attorney is asserting a lien.
Some law firms want just to be paid back any of the costs they’ve advanced (from paying for medical records), while some feel entitled to a percentage of the fee they think they’ve earned. This is the best time to find out what they think they are entitled to. A year later, if the case settles for a good amount, the insurance company may wait to issue checks until the previous attorney signs off.
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 one from the get-go.
Lawyers are wary of clients who’ve fired another lawyer. You could be an unreasonable “problem client” or have a troublesome case regarding the liability or proof of damages.
Even if the potential new lawyer blames the old lawyer for the firing, he or she may be reluctant to take a case that that lawyer may have already screwed up. 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 normal fee and risk the client not being willing to settle because of the amount owed to both lawyers.
If the previous attorney wasn’t fired for cause and did a fair amount of work on the case, a compromise that is usually fair to both lawyers: The prior lawyer gets 1/3 third of the total attorney fee.
This brings us to the million-dollar question: If your case settles, 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 firm take the case), you will likely owe the discharged lawyer a fee. Whether this fee will be the total 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, most 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 a “Good Cause” for Firing a Lawyer?
Anything that constitutes an 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 evident that the passenger should also sue the driver of the vehicle in which he was riding). Other examples include 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 a good cause sufficient to completely deny a fired lawyer any fee (in most jurisdictions that 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 why 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 needs, which is why these disputes are usually compromised in all but the most contentious cases — this ironically creates the lack of case law, which could help to remove the uncertainty for future lawyers and clients. Fighting over fees doesn’t help increase the value of the case either.
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 to determine a fair fee under quantum meruit. It could be a fee based on the average hourly rate of lawyers with similar experience as the fired lawyer and the time expended by the fired lawyer.
Quantum meruit could 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 that decides such fees has enormous discretion in determining what amount is “fair.”
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 clear with the new lawyer about how the fee will be determined because you may owe your old lawyer a fee from the settlement or verdict.
The best deal for you will be if your new lawyer agrees to limit their fees to the percentage stated in the contract with the initial lawyer, minus the fees you must pay to the old lawyer. With this 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 hefty fee claim.
When to Fire Your Lawyer — Better Sooner Than Later
If you have decided 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 working on your case will only drive up the fees and case costs to which he or she may be entitled. 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.
Liens the Fired Lawyer May Assert
If a lawsuit has been filed in your case, 
the attorney likely included “Attorney’s Lien Claimed” in the Petition/Complaint. If this has happened, the insurance company will know and wait to verify the lien before issuing any settlement payments.
Most insurance companies, if the previous attorney has been in contact with them, will also wait to issue the settlement checks – or include that attorney on the settlement check. This can delay finalizing your case until the prior attorney signs their name on the settlement checks.
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 want assurance that the lien is dealt with (either paid or invalidated) before they get paid. They may pay the amount in dispute to 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 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 dealing with the potential fee issues that will arise should you fire him or her. If this article gave you pause as to your decision to fire your lawyer, that would be 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 prospective lawyers to see how they feel about your odds of paying your old lawyer a fee and what kind of deal you can expect from them if you 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. This prevents unnecessary delays later on.