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, you should consider the consequences of taking that step, how it might affect your case, and when it may or may not be a good idea.
First, you should know that it might be more difficult to find another workers' comp lawyer to represent you after you fire your first one. Rightly or wrongly, many attorneys consider this a red flag for a prospective client. Perhaps more importantly, lawyers know that they’d make less money when they're hired after another attorney has already worked on the case (more below on why that’s true).
Second, you should think about why you want to fire your lawyer. There certainly are legitimate reasons to switch attorneys without reservation—for instance, if your lawyer doesn’t stay in contact with you, is rude or unprofessional, or clearly lacks expertise in workers’ comp. But many clients, frustrated with the endless delays in their case, blame their attorneys when the real fault lies elsewhere. It’s essential to maintain realistic expectations about what an attorney can and cannot control.
Now let's look more closely at some of the most common reasons injured employees get frustrated with their workers' comp attorneys—and when switching lawyers may or may not help.
Nothing happens quickly in a workers’ compensation case. A simple request for medical records can easily take four to six weeks, and it could take many more months for you to be scheduled for an independent medical examination. The huge 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.
If your attorney isn’t keeping 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 your lawyer is unavailable when you call, 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.
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 lawyer has a solid grasp of the legal issues in your case, you'd be well-advised to look for a new one. Before you hire a replacement, make sure that attorney 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.
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 he arranged for you to undergo a medical exam or receive vocational rehabilitation? Is the lawyer engaging in settlement negotiations or preparing for your hearing?
Bear in mind that you've presumably hired your attorney for his or her legal 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.
As you no doubt learned when you hired your first lawyer, workers’ comp attorneys generally work for a percentage of the benefits the client receives in an award or settlement. State law governs attorneys’ fees in workers’ compensation cases, and many states set a cap on the percentage and/or total amount they can charge—usually from 10% to 20% of the benefits. When more than one attorney has worked on your case, the lawyers split that fee according to how much work each has performed. If they can’t agree on a 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 is resolved.
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. So most attorneys are reluctant to accept new cases that will pay only a fraction of their usual fee.