Contemplating a Change. Fire Your Attorney?

Think you might fire your lawyer and retain a new one? You, the client, have the right to the lawyer of your choice. And sometimes, after working with a particular attorney, you may develop second thoughts. Below, we provide answers to Frequently Asked Questions: 

• When should I fire and replace my current legal representative?
• What are the consequences (costs, logistics, other things to consider) when switching legal representation? And, 
• How do I change attorneys? 

When to Change Representation? 

Your current lawyer cannot restrict you from retaining new counsel, because you have the right to the legal representative of your choice, according to the public policy of Pennsylvania.* But changing representation can consume your time, money, and set back the timely progression of your case, as discussed below.

So what do you do? 

First, consider whether your problem with your current lawyer is: (A) a fixable one versus (B) an insurmountable issue or “dealbreaker” exists such that you need new counsel.   

 

A. Fixable Problems

1. Communication Break Down 

Perhaps your lawyer is pretty good overall, but needs to do a better job of answering your phone calls, responding to your email, and/or updating you as to the status of your case.

It happens. Lawyers get busy. 

Communication style varies from person-to-person. Some attorneys say only a few words, making every word matter.  But you, on the other hand, may prefer frequent – and even repetitive —  communication about the law, which is foreign to you.  

Also varying is the preferred type of communication: some lawyers prefer text. Others like to talk on the cell when traveling between courtroom events. Still others prefer email and refuse to share their cell phone number with anyone but family or friends.    

Getting on the same page with your lawyer — in terms of the style and timing of communication — can improve things considerably.  And if that doesn’t work?  Consider reminding your lawyer of Pennsylvania’s Rules of Professional Responsibility Rule 1.4.   

Rule 1.4. provides: 

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information.

  

But note the ambiguity:  what does “reasonably” and “promptly” mean? Rule 1.4 fails to offer any objective answer. 

Solution? 

Consider emailing your current legal representative. This creates a record of your complaint, but it’s less alarming to the lawyer than certified mail, which often means: a lawsuit against the lawyer is coming. Consider writing:         

“Dear [Lawyer]:

“Thank you for your help on my case. I’m sure you are very busy, but kindly provide a detailed written status of my case within seven days, pursuant to PA’s Rule of Professional Responsibility 1.4. Also, for future updates in this matter, please let me know how you prefer to communicate. Do you prefer text, email, or telephone communication?  And, how often do you believe these communications should occur to comply with Rule 1.4?  Thank you in advance.” 

No competent lawyer should be “offended” by this request. It gives the lawyer a “reasonable” opportunity to update you, while erasing some of the ambiguity from Rule 1.4. Plus, it contemplates a future of positive dealings between you and your lawyer, stopping well short of firing the attorney outright. 

 

2. You’re Not Sure About the Lawyer’s Strategy

This one is common.

Your lawyer’s strategy for handling your claim or defense might be top notch, but how do you — the client — know that?  You rely on the lawyer’s best judgment, training, and experience.  So how do you — the non-lawyer client — get to the point of “buy in” regarding your lawyer’s strategy?

But here again, the solution is simple. Schedule a time with your lawyer to talk to really understand the strategy. If that fails, get a second-opinion consultation from another lawyer — either at the firm where your current lawyer works, or an outside lawyer, even if you have to pay for it.  Getting a second opinion does not mean you have to fire your current lawyer. 

You’ll have peace of mind, either way.  

 

B. “Deal Breaker” Problems with Your Representation 

Apart from the “fixable” issues, above, at times a lawyer’s conduct will make it imperative for the client to seek alternate representation.  You should seriously consider a change of representation if your current lawyer: 

• Fails to communicate in a timely manner after you have made efforts to improve the issue, 
• Exhibits dishonesty, like demanding money from you beyond the lawyer’s original quote,     
• Fails to abide by a written attorney-client contract for representation, which must be in writing (email is sufficient), along with any modifications to the agreement,   
• Fails to attend a hearing or other court event without reasonable explanation, 
• Fails to answer all your questions about legal options and consequences in your case, 
• Asks you to make all the decisions in the case, without an professional guidance, 
• Fails to advise you fully — at every stage of the case — about option to settle or move forward to trial,  
• Fails to listen to cost-saving options that are obvious to you, 
• Demonstrates a lack of knowledge of basic rules of law, which other lawyers know without specializing in the area of law in your case, 
• Cannot say from experience how your court hearing or case will likely go, 
• Acts unprofessionally or disrespectfully in a way that you sense in your gut is wrong, 
• Attempts to take advantage of the client sexually.  For example, Rule 1.8 bans a lawyer from instituting a sexual relationship with the client or “engage in communications of a sexual nature,” such as sexting. However, a sexual relationship that pre-dates representation is not expressly banned by the Rules, or   
• Makes excuses for failure to take action on your case, but has time for non-essential activities during business hours, such as posting political opinions on social media.  

OK so a change is needed.  Now what? 

 

Consequences From Changing Lawyers?

Consider Timing

First of all, before firing your current lawyer, identify whether another lawyer might take your case.  If you have a good personal injury case or you’re willing to pay hourly on any case, you may have some great options for alternate counsel.

However, if you have a tough case — like a claim for motor vehicle injuries governed by limited tort, or if you’re suing a governmental entity having immunity — your options may be limited.  

Also, if your case is on a trial list, the court may refuse to push back the trial date to allow you time to secure new counsel, for fear of causing prejudice to the opposing party and witnesses who had already committed to the date for trial. 

 

Consider the Cost

The cost of new counsel involves more than just the hourly fee or contingency fee charged by the new lawyer.  Also ask yourself: 

• Has your current lawyer fronted any costs you have not reimbursed, such as payment for filing fee for suit, sheriff costs, expert fees, or deposition transcripts? 
• Did you owe your current attorney for hourly work already performed?
• If yours is a contingency fee case, did your lawyer’s work result in a settlement offer? If so, the attorney may be entitled to a lien against your recovery, post-termination of representation. For example, let’s say your lawyer’s fee is 1/3 of the recovery, and he secured an offer of 30K from the Defendant. You reject the offer and fire your lawyer. You hire new counsel, who settles the case for 100K. Your first attorney may be entitled to 1/3 of the offer he helped get you, or 10K.  Contact us for more details, however.   
• Will termination of your lawyer result in a fee battle?  You might debate the quality of your lawyer’s work.  But the lawyer may be entitled a “reasonable” fee, nevertheless, based on the lawyer’s experience amount of work.  “Reasonable” can mean different things to different people, unfortunately, setting the stage for a protracted fee dispute. But at least, the Allegheny County Bar Association has an attorney fee dispute resolution program, though it’s limited to certain types of disputes.  Click here for more. 

 

Obtaining a Copy of Your File 

You’re entitled to your entire file from your lawyer.  You own the file.  In fact, the lawyer who refuses to provide a copy of the client’s file post-representation may be subject to disciplinary action. See, e.g., In re Taylor, 229 N.J. 329 (2017)(a disciplinary board reprimanded a lawyer for a delay in delivery of the file materials); Brussow v. Utah State Bar, 286 P.3d 1246 (Utah 2012).  

This, however, may not deter a lawyer from immediately making your file available to you, especially if you owe the lawyer money.  Regarding a lawyer who fails to at least make available for you an electronic copy of the file — via thumb drive or link online — feel free to quote Ethics Opinion 88-17, which provides: 

In general, you [the lawyer] should return files to the client, destroy all the files in accordance with the client’s instructions or, if you are unable to locate the client or do not obtain any instructions, you should keep the files for as long as you believe it necessary to safeguard the client’s foreseeable interests. 

The Allegheny County Bar Association (ACBA) has an attorney fee dispute resolution program for fee disputes between $1,000.00 and $25,000.00. Click here for more.  However, any such dispute will involve time and effort to resolve. 

 

How Do I Fire or Terminate My Lawyer? 

While it’s debatable how much money you owe your current lawyer, your right to terminate your lawyer exists without question.  As such, your attorney-client written agreement cannot lock you into indefinite representation from any given lawyer.  Nor can your current lawyer place conditions on termination of the lawyer. 

To end representation from an attorney in the Commonwealth of Pennsylvania, you should clearly state to the lawyer your intention to terminate the attorney-client relationship.  But ideally it should be done via “proof of receipt” email, which will include (a) request for your case file, (b) an itemized list of outstanding fees or costs allegedly owed, and (c) the amount of unbilled retainer, if any.  You may ask your new lawyer to do the termination for you, however, you may need to sign a written authorization for the new attorney to receive a copy of your file and/or the balance of any unpaid retainer.  

 

 

* Unlike in criminal cases, there is no constitutional right to the appointment of counsel in civil cases.  However, PA policy recognizes the client’s right to the lawyer of her choice. For example, in PA, even if your lawyer signs a work restriction clause with his firm, the lawyer can still take your case away from the firm (if you agree) and start a new firm next door to the prior employer, competing all he likes.  In fact, no law firm can bind its lawyers to a work restriction agreement, in PA.  This is because in PA, no law firm can restrict a client’s access to the lawyer of her choice. The client — not the law firm — gets to pick the lawyer for the client.