Can I Change Lawyers in the Middle of My Case?
What you should know about hiring and firing your Attorney while in the middle of your case.
The relationship between an attorney and client is intended to a professional relationship that is beneficial to both parties. However, a personal injury claimant has the absolute right to change lawyers at any point during a personal injury case. In fact, the claimant does not need a reason to do so, but when this happens, it is typically because:
- There is a perceived failure to communicate;
- The client is unable to reach his or her actual attorney;
- The lawyer is unresponsive;
- The lawyer has not explained his/her case strategy;
- The lawyer has not explained the case progress;
- The claimant feels that there been insufficient progress in the case; and/or,
- The claimant loses faith in the lawyer and/or the representation.
However, before you decide to fire your lawyer, you should carefully consider the costs and time you’ll need to spend on finding another attorney.
Deciding to Fire Your Lawyer
Before you make a decision on whether or not to fire your lawyer, give the decision careful thought. A client is always allowed to fire his or her lawyer at will, but it is not a decision that should be made without careful consideration.
It is important to know that in contingency fee cases, like in most personal injury cases, that the Texas Supreme Court has recognized that a lawyer may take an assignment of part of a recovery and a part of the cause of action in a contingent fee case. Dow Chem. Co. v. Benton, 357 S.W.2d 565 (Tex. 1962). This means that the lawyer has and can retain a monetary interest in the case even after representation has been terminated. However, this assignment cannot prevent a client from firing his or her attorney and employing a new one. In addition, the prior lawyer may also have a common law “attorney’s lien,” which is a possessory lien against a client’s property, i.e. money and papers for the amount due to the attorney for fees and expenses.
In addition, if a lawyer is hired on a contingent-fee basis is discharged without good cause before the representation is completed, the attorney may seek compensation in quantum meruit or in a suit to enforce the contract by collecting the fee from any damages the client subsequently recovers. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 561-62 (Tex. 2006) (citation omitted). Alternatively, if an attorney is terminated for good cause, the attorney is not entitled to recover under the contingent fee contract, rather, he or she is limited to quantum meruit. Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App.—San Antonio 1984, writ dism’d).
As a practical matter, if your attorney has spent a lot of time on your case, it is going to be difficult for another attorney to pick up where he or she left off. It may also be hard to find a new attorney who will take on your case as the prior attorney make keep a significant assignment and/or attorney lien making the case difficult to obtain a sufficient recovery for both the client and the new lawyer. This is especially true if the case comes with a big attorney lien attached.
How to Fire a Lawyer
The first thing that a dissatisfied client should do is meet face to face with her or her lawyer and talk to his or her to try to resolve any issues with the representation. If the issues cannot be resolved to the mutual satisfaction of both parties, the client should review the terms of the contingency fee representation agreement and see what the terms are to terminate the agreement and if an assignment and/or attorney’s lien was addressed in the contract.
Again, carefully read through the representation contract you signed when you initially hired your lawyer. Make sure you understand what fees you may be obligated to pay and what steps you may have agreed to follow in order to terminate your attorney-client relationship. Most agreements detail a series of steps that should be taken in order to end the relationship. In addition to paying any agreed-upon fee you will need to formally notify your attorney that the relationship is being terminated. Do this according to the steps outlined in your representation contact with your lawyer. If your representation contact does not outline a process for terminating the relationship, send a certified or registered letter to the attorney’s place of business, stating that you are terminating the professional relationship and that he or she should immediately cease working on any and all matters related to your case. You will also need to request that your file be released to you. You can also request that all your files be transferred to your new attorney, and set a deadline by which the transfer should be completed. If applicable, request a refund of any fees paid in advance for which the work has not yet been done. Also request an itemized billing of charges made, and review this for any discrepancies.
The general rule for the termination of a lawyer is that (a) the lawyer is required to return the file to the client, and (b) they are required to return any unearned fee. In fact, under Texas law:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients’ interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.
It should be noted that some Texas courts and the Fifth Circuit have held that an attorney may withhold a client’s file as security for payment of a fee. Nolan v. Foreman, 665 F.2d 738 (5th Cir. 1982); Griffith v. Geffen & Jacobsen, P.C., 693 S.W.2d 724 (Tex. App.—Dallas 1985, no writ). However, in every instance of withdrawal or discharge, the lawyer must take all reasonable steps to mitigate the consequences to the client.
If you have a question as to your rights, speak with another lawyer.
How to Hire a New Lawyer
Once the claimant has decided that it is in his or her best terminate the representation by his or her lawyer, he or she should start looking for and interviewing new lawyers. Please remember that depending on what stage the case is in, the prior lawyer may be entitled to be paid for their time they worked on the file and/or may maintain an assignment of an interest in your case and/or an attorney lien. You need to discuss with your new lawyer how your old lawyer will be compensated. It’s important to do your research on your new potential attorney by checking recommendations and things such as Attorney Reviews online. Our firm usually is able to work out an agreement with the former lawyer for reasonable compensation for the services he or she performed prior to the termination of the representation. When we agree to take on an existing case and we often agree to pay the prior attorney a reasonable fee for his prior work out of the attorney’s fees portion of the contingency fee, so as to not cost the client any additional money.
It is important for the client to understand that the new lawyer will need time to familiarize him or herself with the facts of your case. Also, there are procedures to follow in order to retain new counsel and have the old lawyer removed from your case. The necessary procedures depend upon whether the case is in litigation or not.