Introduction:
You can always fire your lawyer in California. The California Bar Rules grant that right to each individual who retains legal counsel in this State, and that is true whether or not the client executed a contract that seeks to limit that right. Further, the Bar Rules impose upon that attorney certain obligations as to what that attorney must do in the event of termination of employment, which includes delivering the case file to the client whether or not there are unpaid fees.
Assuming the fees owed are owed on a contingency basis, the attorney may have a right to participate in the recovery to some extent and whether or not fired, the attorney may seek payment for fees earned but unpaid on an hourly basis.
But, no attorney can force a client to remain a client in this State. Simple as that.
Deciding whether to fire an attorney is another matter entirely. The relationship between a client and an attorney is a critical factor in the success of every case and requires mutual trust and respect. If that trust breaks down the case will usually suffer. But to alter counsel in the midst of a matter can be expensive (the new attorney must learn the case) and often delays the progress of the case. Further, it sends a message to the opponents that may encourage them to be less willing to compromise.
The decision of whether to fire and the obligations imposed if such firing occurs is the topic of this article.
Whether to Terminate the Relationship:
The attorney-client relationship is ideally a close one. The attorney-client privilege exists precisely to allow full and complete exchange of information and discussion of tactics and strategy. In that respect, choosing a lawyer is similar to choosing a doctor or therapist. A famous or very talented attorney may not be the right fit for you if the personalities clash or if she/he does not have time, energy, or enthusiasm for the case.
Assuming you already hired the attorney but are dissatisfied, what criteria do you use to decide whether to alter counsel?
1: Your lawyer fails to communicate:
A Bar survey twenty years ago found that the most common complaint among clients was lack of communication. Lawyers are often very busy and have numerous clients to serve. At times, they may be delayed in responding to you or in reporting events. But before taking your case, the lawyer must understand that they have the time and resources to serve you. They are required by Bar rules to keep you informed as to developments of the case and respond to your inquiries. Assuming no emergency in their life or practice, you have the right to expect a response within a reasonable time. If the lack of response is constant and prolonged, it may be time to alter counsel.
Note that often a legal assistant or secretary may return your call. That can often be appropriate depending on the questions asked and the information provided. But if you ask to speak to the lawyer and he/she avoids you, that is a problem.
2. Your lawyer is disorganized or unprepared.
Your lawyer should know your case and be fully aware of the issues confronting the case. His or her filing system should be organized, and your file should not resemble a disorganized pile of papers. He should have vital dates for appearances and pleadings in his mind and last-minute preparation should not be the rule.
A case is a contest and requires preparation and hard work on the part of your legal team. The better-prepared legal team has a tremendous advantage over the confused or ill-prepared team. As with painting, 90% of the job is preparation, not performance. Even the best attorney must learn the case to have a good chance of winning the trial or the negotiation.
When you ask questions to your lawyer, they should have your file ready and organized. They should have copies of any checks you’ve written related to your case, evidence submitted or received as the result of an investigation, pleadings from the other parties (or their own), and any other material related to the proceeding. They might not have their hands on each document immediately, but they need to know where and how to locate it, whether they store items digitally or physically.
One client known to this writer fired his lawyer when he visited his office and saw his desk piled with hundreds of pieces of paper, some falling on the floor. “If he can’t organize his desk, he can’t organize my case,” the client wrote.
During a trial, it is common to see piles of files and documents around the office. But if it is seen more often than not, you may need to consider new counsel.
3. Your lawyer does not know the field of law for your case.
There are numerous fields of law, and the skill set for some is unique. A patent attorney will often know little about contract drafting or personal injury. While specialization is not always needed, there are types of cases and circumstances that can require an attorney who knows that particular field completely.
A good attorney without requisite knowledge is required to either refuse the case or bring in co-counsel who is an expert in the unique field. At times the facts or circumstances of the case can alter over time and expertise not known as required at the beginning does become essential. Again, good counsel will recognize that fact and so advise you and recommend alternate counsel or a co-counsel. As an example, a case involving negligence, e.g., an auto accident, could suddenly become a product liability case when a defective part is discovered as the actual cause of the accident.
The lawyer has a responsibility to either master the area of the law applicable or bring in someone who has that expertise. If he or she does not, you may have to.
4. You and your lawyer cannot agree on tactics or strategy.
You hire an attorney for expert advice and his or her opinion should be considered seriously. But it is your case, not the lawyer’s, and your life that will be most altered by its outcome. If the lawyer cannot support your view of the case, then you should seriously consider switching counsel so that you have someone enthusiastic about the case.
The most common situation in which this arises is in settlement negotiations. As an example, a lawyer could be pressuring you to accept a settlement that you think is too low to cover your costs after an accident. Alternatively, perhaps you want a quick settlement to avoid the courtroom, but your lawyer is discouraging that strategy.
A lawyer is ethically bound to share any settlement offer with you. If the other party makes an offer, even if the lawyer knows it’s too low, they need to tell you that an offer was made.
If there’s a big decision to be made about the direction of your case, it’s reasonable to make a list of pros and cons and talk it over with your lawyer. Take the advice seriously, but also make sure your attorney is fully committed to acting in conformity with your goals in the case.
5: Unreasonable billing practices.
Before you hire an attorney in California, there must be an executed written agreement that lays out in detail how you will pay for his or her services. The problem usually arises as the months (or years) go by and the costs just keep seeming to continue.
A lawyer is subject to the actions of opposing counsel and the courts and extra expense is not necessarily the lawyer’s fault. If bills are coming as a surprise, it is vital you meet and confer with your attorney and determine likely additional bills. Cost-benefit of a case can change radically over time, and what made sense at the beginning of a case may no longer make economic sense.
That said, your attorney should also be aware of cost-benefit and should be active in discussing the cost of the case, future billing, and what the case is actually worth to you. If he or she does not, then they may have a myopic view of the case, where winning in court regardless of cost is their goal, at your cost.
The lawyer is required by Bar rules to give itemized invoices no less than once a month. If that is not happening, definitely consider altering counsel.
6: Unethical behavior or misconduct.
Your lawyer has a responsibility to act ethically.
If your lawyer has acted in the following ways, they might be breaching their code of ethics:
Mishandling funds
Breaking your attorney-client privilege (or confidentiality)
Conflicts of interest
Failing to inform you of settlement offers
Asking you to do something that makes you uncomfortable or could be illegal
Using perjured testimony or telling you to perjure yourself
Lying to the Court about why a pleading is delayed or not filed
Mishandling evidence or destroying evidence.
Appearing under the influence of alcohol or drugs
7. Lack of dedication or compassion.
Your lawyer has a duty to pursue your legal action with zealous representation. The lawyer should do everything reasonably feasible to advocate for, or represent, their client. The level of compassion you’re shown by your lawyer might depend on their personality, your personality, or the facts of the case. There is an old lawyer’s saying: “People hire lawyers that match their own personality.”
You do not have to love your lawyer, but you can expect concentration on your case and an appreciation of your situation. A lawyer who seems to consider you a nuisance is not someone you want in the judge’s chambers discussing the case.
Terminating the Relationship: Legalities and Practicalities:
Firing your lawyer will have ramifications on the case and should never be done on a whim. It is best to discuss the matter with reasonable people you trust before taking that step. A good first step is to shop for another lawyer first so that there is no gap in representation. Do not fail to mention to the potential lawyer that you are planning to terminate your past attorney and explain why. If that lawyer looks uncomfortable with your explanation, take time to consider why. A lawyer who fears that you are unreasonable is unlikely to be enthusiastic about your case.
If you decide to go forward, you must review your written fee agreement with your existing lawyer. Under California law, you can always fire your lawyer, but unpaid costs and the like might become immediately due and owing.
They cannot hold evidence or your file from you whether or not you have paid all of your bill. But they can commence their own legal action to collect past amounts due. If you’ve determined that your relationship with your lawyer isn’t working out, or if you have other reasons why you need to hire a different lawyer, you can follow these steps to terminate your attorney-client relationship:
Read the contract for legal services. Find out what the termination clause says, if anything. If the termination clause includes a specific procedure for notice, timing, or anything else, follow the terms of the contract.
Terminate the attorney in writing and make sure the date is on the notice along with instructions to incur no further fees or expenses. You must request that your file (including all documents, evidence, pleadings, and other materials) be sent to your new attorney or, if you have none, to your address. Send full contact information for the new lawyer so that materials can be forwarded.
Notify the court. If your case is already filed within the court system, you (or your new attorney) will need to file notice with the court that you are now represented by new counsel. Your new attorney will file a “motion for substitution of counsel” and your old attorney will file a motion to withdraw.
In cases of suspected malpractice, you must prove that your attorney was negligent in the legal representation provided to you, that this negligence caused you harm, and the extent of the harm caused by that attorney. Note there are strict limits in terms of the statute of limitations to commencing an action for malpractice and you should obtain legal advice on that aspect of the case immediately.
Conclusion:
Your attorney must be your champion, but a champion with the experience and expertise to advise you as to the pros and cons of any position. Disagreeing with you may be part of his or her job. He or she may be telling you things you do not want to hear and that may mean they are good legal counsel.
But if the attorney engages in any of the conduct described above, you have the right and the ability to change counsel. Be sure to get good common-sense advice before doing so; line up your next lawyer first; and then make sure you give notice in writing and get your full files to make the successor lawyer capable of continuing the matter.