Can I Switch Workers' Comp Lawyers?

Only fire and hire a new workers' comp lawyer when it's absolutely necessary.

If you’re not satisfied with the performance of your workers’ compensation attorney, you can always switch lawyers, even in the middle of your case. But before you terminate the attorney-client relationship, there are several things to consider.

Things to Consider Before Firing Your Workers' Comp Lawyer

First, it might be more difficult to find another workers' comp lawyer to represent you after firing your first one. Rightly or wrongly, many attorneys consider this a red flag for a prospective client. Perhaps more importantly, because your first attorney is entitled to reasonable compensation for his services, any newly hired lawyer would forfeit a portion of his or fee if your case is successful.

It’s also important to examine the legitimacy of the reasons for seeking new counsel. If your attorney fails to keep in contact with you, exhibits rudeness or unprofessional behavior, or displays a lack of expertise in workers’ comp, you can fire him or her without reservations. But many clients, frustrated with the endless delays in their case, blame their attorneys when the real fault lies elsewhere. When considering whether to switch attorneys, it’s essential to maintain realistic expectations about what an attorney can and cannot control.

Potential Reasons to Look for a New Attorney

Now let's discuss some of the most common reasons that clients switch workers' comp attorneys:

My case is taking too long. Nothing happens quickly in a workers’ compensation case. A simple request for medical records can easily take four to six weeks, and it can take many more months for you to be scheduled for an examination with a physician. The vast backlog of cases in most workers’ comp courts can lead to further delays. In the vast majority of cases, blaming your attorney for these delays is like blaming the waiter because your steak isn’t cooked properly. The fault usually lies with the chef, not the server.

In most circumstances, hiring a new attorney won't speed up your case. In fact, there's a better chance that switching lawyers will postpone matters even further, especially if your workers' comp hearing is approaching.

I rarely speak with my attorney, and he doesn't return my phone calls. If your attorney fails to keep you updated on the status of your case, you may have cause for concern. Keep in mind, however, that legal assistants and paralegals can be valuable sources of information about the workers' comp process in general and your case in particular.

If you call to speak with your lawyer but he or she is unavailable, request that a phone conference or in-office meeting be scheduled. Make it clear at your next meeting that you expect better communication. Your attorney should listen to your concerns and take steps to improve communication in the future.

My lawyer doesn't understand workers' comp law. Attorneys who don't specialize in workers' comp tend not to understand the nuances of this complex field of law. If you're not confident that your attorney has a solid grasp of the legal issues in your case, you'd be well-advised to seek new counsel.

Before hiring an attorney, make sure he or she regularly handles workers' comp cases and can explain the relevant issues to you. Ask for references from former clients or other attorneys if you have any doubt.

My attorney isn't working hard enough on my case. A good workers' comp attorney is a zealous advocate, not a passive observer. You are well within your rights to inquire (in a non-confrontational manner) precisely what steps your lawyer has taken to advocate on your behalf. Has she written a letter to your employer or the workers' comp insurer? Has she arranged for you to undergo a medical exam or receive vocational rehabilitation? Is she engaging in settlement negotiations or preparing for your hearing?

Bear in mind that you've presumably hired your attorney for his or her expertise in the field of workers' comp. While it can be tempting to second-guess your lawyer's actions or strategy, to some extent you simply must trust your attorney's instincts and judgment.

What Happens to the Attorney’s Fee If I Fire My Lawyer?

Attorneys' fees in workers’ compensation cases are governed by state law and generally amount to 10% to 15% of benefits awarded. If more than one attorney has worked on your case, the lawyers split the fee according to how much work each has performed. If the lawyers themselves cannot agree on a particular fee-sharing arrangement, the fired attorney may file an "attorney's lien" on your workers' comp case and petition the court for a fee when your case resolves.

At first blush, requiring multiple attorneys to split a single fee appears to be a good deal for clients. The downside to this arrangement is that it becomes much harder for clients to find a second attorney after firing their first. Attorneys' fees in workers' comp cases are already low-margin even under the best circumstances. Most attorneys are reluctant to accept new cases that will pay only a fraction of their usual fee.

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