I got a lawyer for an auto accident case in August 2016, the other driver was found at fault. In Sept.2017 I left that lawyer because they offered to refer a lawyer closer to me. I was offered to work on a settlement with the insurance Co. and spoke to the new lawyer about doing that but he said he could do a better job. It is not a large settlement. He started on the case in October 2017. He has been working on it but handed it over to another lawyer. I never got his name or ph#. When I started checking on it recently, I discovered this. I explained that I needed to close the case quickly and he said they gave a lowball offer. He then asked about my 1st MRI which I told I gave all that info. to the other lawyer that handed the case to him. I offered to help him to speed it up but he said he would get it. It seems they have been very slow and lazy about settling the case. I need to settle the case. I told him if he had not received a decent settlement offer be Friday (he claims the insurance agent is hard to reach), then we need to revisit our situation. It is a smaller claim and the insurance co. offered to settle with me on my own. I already had all the info. and handed it to him on a silver platter. I spoke to the original lawyer I turned my case over to and expressed my concerns about the lack of communication and amount of time it was taking to settle a claim that he had all the information about from the start. He said the Ins. Co made another offer but he would have to speak to the other lawyer and they would contact me on Fri. I asked his advice again, should I remain waiting as I cannot afford to, or release them and handle the settlement on my own? The claim has been working since Aug. 2016. He claims if I were to “fire” him or let him go he will put a lien on the settlement. Can he do that? The terms of the contract are I receive 2/3 of the settlement -1/3 plus expenses.
This is a great question and one that is more common than you might think. One of the sub-plots running during the third season of Better Call Saul pertains to a dispute among the co-plaintiffs in a nursing home case – most wanting to settle and get their money, one holding out because the lawyers told her they could get a better settlement with more time.
So, there was an auto accident. You made an insurance claim and hired a lawyer. After about a year went by, and your first lawyer referred you to a second lawyer because the 2nd lawyer was closer. You didn’t specify why distance was an issue. Was it because the lawyer (or you) would have to travel for depositions, trial, etc? Phones, faxes and email travel at the speed of light, so communication shouldn’t have posed a problem, even with a distant attorney.
From your description, it sounds like you agreed to the second lawyer. When a case is filed in court and someone wants to change attorneys, they usually do so by filing a document called a Substitution of Attorney. That document should have three signatures on it: The lawyer substituting out; the lawyer substituting in; and the client – indicating that all three are aware of the change, and that they agree to it.
Enter the third lawyer. Your clarity seems to diminish a bit at this point, because it’s hard to tell if you knew someone else was stepping in. Also hard to tell is whether the 3rd lawyer is a member of the 2nd lawyer’s law firm. If that’s the case, it shouldn’t be a big deal because it’s normal for law firms to divide work internally among various attorneys and their staff. In fact, that’s beneficial to the client, who may have an attorney very familiar with one aspect of the case work on just that part of it, while others take the lead in other areas. So we have to be clear … when you say a 3rd lawyer took over the case, is this lawyer a whole new law firm, or a different lawyer within the second law firm?
If the 3rd lawyer is actually a third law firm, then you have to figure out how they came to be your lawyer (without you hiring them, or agreeing to be their client). It’s not uncommon for a law firm to reserve the right to place a lien against the proceeds of a settlement or award, but there has to be some written document saying that you’ve agreed to that arrangement. That’s commonly referred to as the Retainer Agreement, which attorney and client would sign when you agree to hire them as your attorneys, and they agree to take you on as their client. Does such a document exist between you and the firm that claims to have a lien against your case?
But let’s say, just ’cause the facts aren’t crystal clear, that the 3rd lawyer is actually an associate with the 2nd law firm, and you’ve agreed to work with them and there is paperwork to that effect. If you decide to fire them because they don’t feel your case is far enough along yet to receive the settlement it’s worth, then you can do so. But, fair is fair, they are entitled to get paid for the work they’ve done up to the point you fire them. So, assuming their contract has a lien clause in it (almost certainly would in a contingency fee case), what they’ve told you is correct: They would be entitled to lien the proceeds. Normally there would be a limitation in that the amount sought would have to be reasonable for the amount of work they can demonstrate they’ve done.
Attorneys are regulated by a Bar Association in the state where they are licensed and practice. California, for example, has the State Bar of California. Its web site is https://calbar.ca.gov. Each state has rules of ethics that attorneys must follow, and procedures for clients to contact the Bar if they have questions about the way their case was handled. You can use Legal.com’s Legal Research tool to find the rules of professional conduct in your state. For the American Bar Association’s generic rules, search Model Rules Professional Conduct. You might also be able to find written opinions from similar cases in the past, or reach a help desk at your state’s Bar association who can assist you in determining how your situation should be handled.
Hopefully this provides an overview addressing a common question: What happens when a client decides to fire his lawyer and proceed on his own, in a contingency fee case? In addition to taking on his own case, the client also has to be willing to work with the discharged lawyer to determine how much might be owed, under their contract, for work completed by the lawyer. To work through this question, one must refer to the written attorney client fee agreement and, possibly, the ethical rules (rules of professional conduct) and ethics opinions in their state.
Saving the most important part for last: Communicate with the lawyer. Give him (or her) a chance to explain where they are in the case, and why they feel you should follow their advice (not settle now). If you still disagree, tell them you want the settlement now. One of the ethical rules of the profession is that lawyers have to obey their clients (within reason and within the law). If you still can’t agree and decide to let them go, make sure you have a clear understanding of what work they have accomplished, and how much they intend to charge you for it. Ask them for a copy of their contract with you, showing you what you agreed to pay in situations like this.
Please feel free to write back to clear up any of the unknowns and continue this conversation.
Regards, — Dave
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