Sometimes, despite your best efforts, problems can crop up in your dealings with a lawyer. Here are some common issues and strategies for dealing with them.
The lawyer won’t communicate
This distressingly common problem doesn’t have an easy solution. If your lawyer doesn’t seem to be working on your case, sending a polite but firm letter laying out your concerns should get your lawyer’s attention. Don’t threaten to sue for malpractice or complain to the bar association; focus on getting what you want right now, which is better communication about your legal matter.
If your lawyer does not respond, and subsequent meetings or conversations are not fruitful but you still want this lawyer to represent you, consider suggesting mediation to work on your communication problems. Someone with a bad deskside manner may still be an excellent lawyer, and it’s difficult to switch lawyers in the middle of a case.
You have questions about a bill
First of all, if you don’t understand a bill, or it’s not itemized, ask for a clear, itemized statement. Then, if you think some charges are inflated or unreasonable, negotiate with the lawyer. For example, if the bill charges you for the main lawyer’s time but you’re pretty sure the paralegal did most of the work, or you’ve been charged for the time of two lawyers who did the same thing, say so. The lawyer should reduce the bill.
If you can’t work out something with the lawyer, consider going to arbitration. Most state bar associations have voluntary fee arbitration programs you can use. Because arbitration is usually cheaper, faster, and easier than a court trial, it’s generally in everyone’s best interest.
In some states, in fact, arbitration is required for most fee disputes between lawyers and clients. (That’s the rule in Alaska, California, Maine, New Jersey, South Carolina, and Wyoming). Your fee agreement may also require you to submit fee disputes to arbitration. (This is not legal in some states).
Arbitration can be binding or nonbinding. Binding arbitration means you and you lawyer are bound by the arbitrator’s decision -- neither of you can appeal. An arbitration clause in an attorney-client fee agreement usually calls for binding arbitration.
Nonbinding arbitration means that either side can reject the arbitrator’s decision and file (or continue with) a lawsuit. Arbitration by a local or state bar’s fee arbitration panel is usually nonbinding. Beware that in some states, a nonbinding arbitration award often becomes binding and final if you fail to reject it within about 10 to 30 days. In other states, by contrast, you need to take steps to make a nonbinding award binding. For example, you may be required to file a copy of the arbitration decision with a local court.
Unless binding arbitration is required under your agreement or state law, you are usually best proceeding with nonbinding arbitration. This will give you an opportunity to organize your case and have a practice run in case the matter reaches court. And there is always a chance that you and the lawyer will either settle the matter during the process or accept the arbitrator’s award.
The lawyer is dishonest or totally incompetent
If your lawyer has stolen from you or acted with gross incompetence, the authorities in charge of disciplining lawyers in your state should show some interest.
Every state has an agency responsible for licensing and disciplining lawyers; that’s where you should file your complaint. In most states, it’s the state bar association; in others, the state Supreme Court. The agency is most likely to take action if your lawyer has failed to pay you money that you won in a settlement or lawsuit, made some egregious error such as failing to show up in court, didn’t do legal work you paid for, committed a crime, or has a drug or alcohol problem.
These agencies are primarily concerned with punishing lawyers, not compensating clients. But most states do have funds from which they may reimburse clients whose attorneys stole from them.
Should you switch lawyers?
It’s your absolute right to fire your lawyer at any time for any reason. (If you’re in the middle of a lawsuit, however, it may require the court’s permission because of the disruption it will cause to the proceedings.) Give it serious consideration if you’re convinced the lawyer is doing a bad job or if your relationship with the lawyer has become intolerable.
Switching lawyers, however, is expensive and disruptive. You’ll probably have to pay a new lawyer to get up to speed on your case. If the first lawyer hasn’t done much, this shouldn’t cost a lot. But if you have a trial coming up, your new lawyer will have a monumental job. So before you jump, do all you can to find out how your matter is really being handled.
Gather information. If your lawyer doesn’t seem to be making any progress on your behalf, call and explain your concerns. If you still can’t find out what has (and has not) been done, get hold of your file (all the papers related to your case, such as correspondence and court documents). You can read it in your lawyer’s office or ask your lawyer to send you copies of everything.
Get a second opinion. If you’ve got serious doubts about how your case is being handled, see a second attorney. Second opinions are relatively inexpensive -- an hour or two of a lawyer’s time spent talking to you plus any time spent reviewing papers. And they are often very valuable in helping you decide whether to stay with your current lawyer or change to someone better suited to the task.
The more you can tell and show the second lawyer about your case, the better advice you will get about whether your case is being handled correctly and what might be done differently. Keep in mind, though, that no two lawyers handle a case in exactly the same way.
Firing your lawyer
If you decide you must fire your lawyer, take a couple of basic steps.
Get your file. Be sure to get your file when you end your relationship with a lawyer. You need it to make sure all deadlines are met, mistakes are repaired, and the matter keeps moving. If the lawyer is unresponsive and you’re in the middle of a lawsuit, go to the courthouse and look at your case file, which contains all the papers that have been filed with the court.
If the lawyer doesn’t give you the file right away, ask for help from your new lawyer and state bar association. If that doesn’t work, as a last resort you may need to sue your lawyer in small claims court, asking the court for money to compensate you for what you’ve spent on redoing work in the file or trying to get it.
Get advice from your new lawyer. You may want to have your new lawyer evaluate the first lawyer’s actions and advise you about paying (or refusing to pay) any bill you receive, filing a complaint with your state lawyer discipline agency, or even suing for malpractice.