Changing Lawyers: My Lawyer Won't Return my Call
I was asked by a prospective client whether they could change lawyers. They said they were using another lawyer, but he would not return their calls. They wanted to know what their options were. I was careful not to disparage their current lawyer or in any way try to influence their decision.
There are a couple of things clients need to know about changing lawyers:
- When can the client make the change?
- A) Before suit. Clients who are not in suit have the absolute right to change lawyers at any time, with or without cause (reason). The rules of the Florida Bar protect the client's right to do that, and the discharged attorney can not retaliate against them for changing lawyers. The Florida Bar Rules of Professional Conduct, Rule 4-1.16(d) Protection of Client's Interest, state:
"Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred."
- B) After suit is started clients can still change lawyers until the case is scheduled for trial. The closer the case gets to trial the harder it is to change lawyers. That's because the opposition has a right to get the trial over with, and may not want to a continuance while the new lawyer gets up to speed.
- How is it done? Changing lawyers is easy and simple to do. Like changing doctors, a letter is either faxed, mailed or delivered to the discharged lawyer signed by the clients. The letter simply states the Clients want to retain another lawyer to take over their claim. No reason has to be given. The discharged lawyer is requested to send a copy of his file to the new lawyer.
- How are fees and costs handled? Even though the case is on a Contingency Fee basis, the discharged lawyer has a right to reasonable fees and costs for services rendered if the case is later settled. In most personal injury cases handled on a Contingency Fee basis, the discharged lawyer will simply send a Notice of Lien to the insurance company, claiming lien rights against any future recovery. If the amount of the costs is nominal the new attorney will simply write a check to cover the costs when the file gets transferred. Most times the collection of the lien is postponed until the case settles. If the client discharges the lawyer and has fraudulently settled on his own before the discharge occurs, the insurance company should pay off the lien out of the settlement.
- Most clients who hire attorneys on a Contingency Fee basis have a deal where they don't have to pay fees or costs "unless they win." So, they get the of benefit any costs expended by the first firm when they change firms. For example, copies of the accident report and medical records are included in the first lawyer's files. A copy of the files is transferred to the new law firm.
Usually an experienced lawyer will suggest the client make one more last ditch effort to get their first lawyer to return their call before terminating the lawyer. It is also good practice for a lawyer to call his brethren. They are sometimes unaware of the client's discontent, and can salvage the relationship. It will earn their thanks for professionalism, and the clients are happy too.
It is wrong for an attorney to put pressure on a client who is being represented by another law firm to fire the law firm. A lawyer who crosses the line between simply giving advice about making a change, and bad mouthing another other law firm in order to influence the client to transfer the case to him may be sued for interference with contract.
