In this installment of “How and Why to Change a Personal Injury Lawyer in Mid Case” we consider perhaps the most common question I am asked: how to fire a lawyer after a contingency fee contract has been signed in a personal injury claim like for a recalled hip implant case, car wreck, falling at Disney or on a cruise. It is a relatively simple process: usually one simply writes the lawyer a letter stating that you are officially terminating the contract; however the consequences depend on several factors, including how long the lawyer has been retained and how far the lawyer has taken the case.
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The Florida Bar, for example, specifically notes in the mandatory Statement of Clients’ Rights in Contingency Fee Cases aka The Client Bill of Rights that every client and lawyer is required to sign that it is permissible to terminate without consequence the contract with a lawyer within the three business days of the lawyer’s being retained. And for most lawyers and in many cases, probably little or nothing has been done in those three days. But not always. I have had, over the last twenty years of representing people for car accidents, slip and falls, and even hospital injury claims, actually settled cases within 72 hours of representation. Unfortunately for me, it does not happen as often as I would like, but in some specific circumstances, such as very serious or fatal accidents, with a limited or verified and specific amount of available insurance coverage, a case can be settled within a few days. For example, if a father is struck and killed or critically hurt while changing a flat tire on the side of the road by a delivery truck that has $1-million in commercial liability coverage and the insurance company offers to tender the limit, and there is no other coverage or assets to pay the family, the case can literally be over within a day or two.
On the other end of the spectrum are cases that have lingered in some lawyer’s file cabinet for months or years. The lawyer may be unaware that the client has called or has simply ignored the calls asking for a report on the status of the case or requesting assistance in obtaining a particular type of therapy. The frustrated client ultimately seeks a new lawyer and wants to fire her first one. In this circumstance there are two potential outcomes.
First a determination needs to be made as to whether or not the client fired the lawyer “for cause.” This means, did the client have a justifiable reason to terminate the contract with the lawyer before the contingency, i.e. the settlement, occurred? Or did the client fire the lawyer “without cause,” which simply means the lawyer was conducting him- or herself reasonably, but for some reason or another the client decided to change lawyers.
WHY ARE YOU FIRING YOUR LAWYER?
“Some reason or another” can mean a lot of things. A typical “non cause” I have seen is that the client has received pressure from a family member or friend to change the unknown lawyer to one that the family member or friend has a connection or past relationship with. Other less savory reasons include what we lawyers refer to as stealing clients. Some lawyers have been known to offer clients certain inducements to switch lawyers, such as money, clothing, transportation, or just promises of better results.
Virtually every personal injury lawyer I know has a story or two of having lost a big or important case suddenly and out of nowhere when a client simply was lured away by promises made by another lawyer or someone else trying to persuade the client to fire the initial lawyer.
Lawyers are not supposed to provide legal representation or advice to potential clients who they are aware are already represented, with the hopes of convincing them to fire their lawyers and hire them. This conduct is considered to be interference with a contract.
Recently, I was contacted by a former client about a potentially significant case involving a South Florida traffic accident that killed a husband and father of three children. A family member called me and asked that I meet with the grieving widow. Once there I was informed that the family had already hired a lawyer. I knew the lawyer, who happened to be very experienced; I told the family that they had hired an excellent and competent man and wished them the best. To do more than that would have been inappropriate though I imagine others in my situation might have said something different.
WHO PAYS THE FIRED LAWYER’S FEES AND COSTS?
When the lawyer is fired without cause, and has put his or her time and money into the representation of the client in a contingency personal injury case, that lawyer is entitled to be paid for his time and expenditures at the conclusion of the case under the legal doctrine of quantum meriut. This means that the hours and moneys he has invested into the case will be calculated and that a lien will be placed on the case notifying the court and insurance company that the fired lawyer has an interest in the settlement proceeds and must be paid before the case can be disbursed. Those liens often require that the fired lawyer’s name be placed on the settlement check so that the client and new lawyer cannot deposit any settlement funds without the fired lawyer’s knowing and agreeing to it.
The number of hours and hourly rate that a fired lawyer claims to have invested in a particular case are often the subject of intense and heated debate among the former client and her new lawyer and the fired lawyer and law firm. It is not unusual for the fired lawyer to inflate the amount of time as well as to claim an exorbitant hourly rate in order to maximize his own recovery at the expense of the client who fired him. This is especially true in a significant case.
Since the majority of lawyers who handle accident cases in Florida do not keep careful records of their time, they are often required to recreate a time sheet to show what they did for their former client and how long it took them. The amount they can claim for their hourly rate depends in great part on their experience and qualifications. For example, a newly-minted attorney who has never conducted a jury trial in a slip and fall and has been practicing for only a few years may be able to claim $200 an hour, in contrast to Board Certified Civil Trial lawyers with more than 20 years of experience, who could claim $600 an hour for their time.
When and if an agreement cannot be reached about the hourly amount claimed or the amount of time allegedly spent on a former client, a judge must decide by conducting a mini-trial called an evidentiary fee hearing. At these mini-trials, both the former and current lawyers battle each other, taking depositions, subpoenaing billing records and calendars, and even calling expert witnesses to evaluate the qualifications and time spent. In addition, The Florida Bar now has a statewide Fee Arbitration Program that is available and authorized by the Florida Supreme Court to settle fee disputes between lawyers and their clients. The arbitration process is a reasonable alternative to the court system for the resolution of fee disputes because, it can often be a more difficult and time-consuming battle than the one the lawyer was hired for in the first place.
Lastly, who pays the fired lawyer is a question that should be resolved by the client prior to hiring the new lawyer. Some lawyers I know are so happy to get any case–much less a possibly significant one–and get it early on when there could not have been much work done, that they will agree to absorb the quantum meriut lien out of their own fees. Others lawyers, who recognize that months or years of work have been done by the former lawyer, will insist that the client be responsible for the outstanding lien. I believe that either way, who will be responsible for the first lawyer’s lien needs to be resolved with the newly-hired lawyer from the very beginning.
HAVE YOU FOUND A NEW LAWYER WILLING TO TAKE YOUR CASE?
I recommend the following before you consider firing your current attorney. First, make sure you have actually found a new lawyer who is competent and willing to undertake your case. I have seen many people who have fired their first lawyer and then spend an eternity going from law firm to law firm unable to find another lawyer who is willing to undertake their representation for many reasons, including the fact that the fired lawyer’s lien and mismanagement of the claim are so significant that the new lawyer is simply unwilling or unable to commit the necessary resources to reconstruct and revitalize someone else’s work. Firing a lawyer once a lawsuit has been filed and depositions and other discovery have begun is much like firing the Head Coach in the fourth quarter of the Super Bowl; when his team is 10 points down and there is only few minutes left on the clock. Like the coach, a newly hired lawyer will have to assume the responsibilities and the expense of coaching a team of players he did not recruit, with plays he did not design.
Lastly, if you fire your lawyer once the case is pending in court, most Judges will require that you hire another lawyer within a specified period of time or face having your case dismissed. Typically this can range from 30- 90 days. If you have a complicated claim, that has been pending for many years, it will take some lawyers weeks or more to simply review all of the documents before agreeing to take or reject your case. That means if you are unable to find or hire another lawyer, you risk having your entire case dismissed.
Once these realities are explained properly to clients wanting to fire their lawyers, they may think twice about the consequences and be very careful about who they hire in the first place.