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Should You Fire Your Lawyer and How Does That Work?
In certain cases a client should quickly fire a newly hired lawyer. For example, if the tow truck driver who came after the client's car was wrecked pitches a certain lawyer, or someone else at the accident scene or close to the accident pitches a lawyer, it may mean that the lawyer is unethically and illegally paying for clients.
In general, the sooner you dump a lawyer you are not happy with, the better. Some personal injury practices send a non-lawyer out to sign up a client who is in the hospital or laid up at home. The Nevada State Bar says that the initiation of an attorney fee contract must be done by a lawyer. Therefore, such a fee agreement would be invalid when signed. However, if the client then lets the lawyer begin work on the case there might be an argument that the initially invalid fee agreement became valid by the subsequent conduct of the client and lawyer.
However, as a practical matter there are a number of problems to switching lawyers, especially if considerable time has gone by after hiring the lawyer.
- In an hourly fee case, the new lawyer will obviously bill some time to get up to speed on the case; this may not be a deal breaker. But in a contingency fee case the old lawyer may assert a lien for work already done. Since the client doesn't want to pay double, the client should ask the new lawyer if the old lawyer's lien will be paid out of the new lawyer's contingency fee. If the new lawyer agrees, this can work out well for the client. If the new lawyer doesn't agree, the client may be in a double billing situation.
- If I get a prospective client who wants to switch from their old lawyer to me and it is a contingency fee case, I will ask myself these questions (and ask the potential client questions trying to find answers):
- If it looks like a great case, how much work has the old lawyer done; what would be a reasonable lien he or she could charge? The best situation for a switch is if the old lawyer sees a much lower value to the case than I see. If I think I can get a lot more than the old lawyer thinks the case is worth, a switch can be a win for all involved. Old lawyer gets rid of an unhappy client; I can pay out of my contingency fee a lien amount that makes old lawyer happy and doesn't cut that much into my fee and client gets better served.
- Is this a case that has some serious problems? Usually the client says something like, "Old lawyer doesn't answer my calls, doesn't seem interested; doesn't really practice a lot in the area of my case." Admittedly, there are lazy, tired lawyers out there who shouldn't be handling many of their cases. But, if the lawyer thinks the client is dishonest, or troublesome, or if the lawyer thinks the case is a loser, the lawyer may come up with a more tactful reason for not wanting to go forward with the case.
- Sometimes the "problem" with the case is that the insurance company or self-insured defendant thinks the case is defensible and won't offer any money. If this is the situation, I have to ask myself whether this is a challenge I want to take on. If I think the case is really good and worth a lot of money the challenge may be worthwhile. But if the case is not really good, or not really worth a lot of money, the cost and time of taking the case to trial may not justify taking on a client who didn't come to me or my partners in the first place. It is one thing to keep an insurance company honest if the client has been with us all along; it is a different matter to pick up some other lawyer's difficult case. If a PI case is not pretty big, trying it, even if you win, is usually pretty low paying work in which the lawyer has to put at risk a lot of money for costs such as doctor testimony.
A fairly common case that gets put to a judge is when client hires Lawyer A on a contingency fee and Lawyer gets an offer and advises the client to take it. For example, the offer is $50,000. Client thinks the case is worth more and fires Lawyer A and hires Lawyer B who after some work gets the case settled for $100,000. Lawyer A says, "I get a fee based on the $50,000 offer." Lawyer B says, "Lawyer A doesn't deserve half the fee for urging the client to sell out for half the value of the client's case." However, in this situation the courts usually side with Lawyer A.
In conclusion, yes, a client with a contingency fee case can always fire their lawyer. But, as a practical matter, it may not be easy to get another lawyer to step into an ongoing case.
To avoid having to switch lawyers or to avoid getting stuck with a sorry choice of a lawyer, clients should make a careful choice in the first place. And, yes, fees can vary quite a bit whether it is an hourly case or a car wreck case. For example, in car, truck, bus, boat and motorcycle injury case most lawyers charge anywhere between 33.33% to 40%, but our firm charges only 25% if there is a police report that cites the other side (or your driver if you are a passenger) for being at fault. Low Fee for Favorable Police Report Cases
Reducing the Chance of Wanting to Switch Lawyers:
Not only do you want to select a top lawyer, but if you are the plaintiff in a personal injury lawsuit you also want your lawyer to be confident in his or her heart that you have a good case, not merely to project confidence to the other side. A lawyer who believes in you will likely put more energy and money into preparing your case.
The best way to get a lawyer who believes in you in a personal injury case is to be honest at the initial interview about any potential problems in the case. For example, suppose you hurt your back in a car collision, but you had back problems before the collision. One lawyer might see the pre-existing back problems as a negative. Another lawyer might see the pre-existing back problems as a positive because the pre-existing back injury made it more likely that a given amount of force in a collision caused you a lot of damage. As you discuss these issues at your initial interview you will get a feel for whether the lawyer believes in your case or just wants to throw your medical bills at the insurance company and hope for the best.
Another situation you should always bring up when hiring a lawyer for a personal injury is if you are in or planning to file for bankruptcy.
Lawyers don't like to feel tricked any more than anyone else does. At the initial interview be sure to reveal any problems with your case. The lawyer must keep these disclosures confidential. However, the lawyer may not stand by while a client commits perjury in a civil case. To follow up with the example of a car wreck that hurts your back but you had a pre-existing back injury, if you disclose this to a lawyer and the lawyer doesn't take your case, the lawyer cannot tell anyone about your pre-existing back injury. But if you hire the lawyer and the case goes into litigation and you must testify under oath, the lawyer cannot sit back if you deny a pre-existing injury.