Question: My employer refused to pay me for overtime hours, so I hired a lawyer to file a lawsuit. The court set a trial date nine months from now. My employer’s lawyer took my deposition, and we’ve exchanged documents. But now my lawyer is saying some of the documents we received shows that I might not be entitled to overtime. I want to fire him and hire a lawyer who believes in my case. Can I do this?
Answer: Most likely, yes, you can change (or “substitute”) lawyers in your case. However, the terms of your separation will typically be governed by what your retainer agreement with your lawyer says. And, there are repercussions and caveats that you should consider first.
A good working relationship between an attorney and client is essential in any case. A good attorney-client relationship requires trust, respect, and effective communication. If you believe your lawyer is not operating in your best interests, or you can’t trust his or her advice, those are valid reasons to end the professional relationship. However, although you typically have the right to fire your lawyer at any time for any reason, you may want to consider a few issues first, including what you’ll owe your original lawyer in attorneys’ fees and potential challenges to finding a new lawyer.
Your professional relationship with your lawyer is governed by the retainer agreement that you entered into when you hired him or her. Most retainer agreements include a clause that addresses how a client can go about “firing” the lawyer. One of the most important terms is payment of fees.
You will likely have to discuss how your lawyer’s fees for the services performed so far are going to be handled. The retainer agreement may have a provision that addresses this, such as a set hourly rate for services performed. But even if your agreement lacks this term, your lawyer is most likely entitled to fees for the reasonable value of his services (unless he has committed malpractice; see our article on attorney malpractice for more information).
If you do succeed in reaching an agreement with your lawyer to part ways, you will definitely want to hire another lawyer since you are a party to an on-going lawsuit. In fact, you may want to talk to a few employment lawyers first to see if they would be willing to take on your case. This may be challenging, though, because lawyers can be reluctant to step into lawsuits that are well under way. This is because they have no control over what’s taken place on your behalf thus far. And, of course, because they may have to share a portion of their fees with your prior lawyer.
Some employees are not entitled to overtime pay (or covered by certain other wage and hour laws) because they are “exempt.” Whether an employee is exempt depends on several factors pertaining to the employee’s job duties, level of authority, and earnings. The most common exemption categories are the executive, professional, and administrative exemptions. (For more information on who qualifies as an exempt employee, see Nolo’s article,When Must Employers Pay Overtime?)
It’s unclear what evidence led your lawyer to believe that you may not be entitled to overtime pay, but wage and hour law is complex. The standards for entitlement to overtime are sometime subtle, and it may not have been readily apparent that you’re exempt until some discovery was undertaken. To figure out whether someone is exempt, the lawyer must look at all of the work duties, the percentage of time devoted to each task, what level of authority the employee has, and other factors relating to the employee’s day-to-day responsibilities. It is possible that some evidence disclosed in discovery alerted your lawyer for the first time that you might be exempt from overtime pay.
One of a lawyer’s most important, and sometimes most difficult, duties is the duty to tell his or her client the strengths and weaknesses of the case. A lawyer’s assessment of your case fluctuates over the course of a lawsuit, as more information is revealed. So while you may not like your lawyer’s opinion, the lawyer was under an obligation to inform you of his or her evaluation of your claims. This is in your best interests; you should want the lawyer to be straight with you about your chances of success. Mindlessly pursuing a losing case will cost you time and money, and it’s definitely not in your best interests. And, if the attorney is competent and telling you the truth, other lawyers are likely to agree with his or her assessment of your case.
You’re entitled to get a second opinion and determine whether or not a reasonable, legal mind could differ in the assessment of your case. You should do this before you decide to fire your lawyer for one simple reason: If you find out that other lawyers agree with your lawyer’s assessment, you may want to reconsider before firing your lawyer. Just because your lawyer thinks your case has weaknesses doesn’t mean you have to throw in the towel and dismiss your case. Your lawyer may recommend other options, such as accepting a lower settlement offer than you were previously hoping for. For information on how to find a wage and hour lawyer, see Hiring a Wage and Hour Lawyer.
As noted above, you need to check your retainer agreement for any provision that deals with substituting attorneys. And, make sure you know your options by getting a second opinion about your lawyer’s assessment. After you’ve made the decision to fire your lawyer, you’ll need to take certain steps.
Once you’ve decided to fire your lawyer, you should speak to him or her and work out how the attorneys’ fees will be dealt with (if necessary). The lawyer should file a notification informing the court that he no longer represents you. Ideally, this notification should also identify your new lawyer for the court. This notification will also go to your employer’s lawyer.
Substituting attorneys may come with negative repercussion. Most importantly, you want to avoid being left without a lawyer in the middle of litigation, or worse, right before trial. For that reason, you should have substitute counsel lined up before you fire your lawyer.
It won’t be pleasant to tell your lawyer that you want to fire him or her, and it could be confrontational (he or she is a lawyer after all!). Your lawyer may demand fees and the resulting conflict could be a major distraction while you are trying to pursue your overtime lawsuit. But, even if this happens, you should be aware that you have certain rights. In most cases, the lawyer cannot refuse to turn over your client file until you pay his or her fees. And, the lawyer cannot refuse to file a substitution of counsel if you ask for one.
It’s also possible that your employer and its lawyer will get the impression that your lawyer has lost faith in your case. Even though your lawyer can never reveal the reason for the substitution, some lawyers will speculation that your lawyer voluntarily withdrew from your case because it’s weak. This could make them reluctant to enter into settlement negotiations.
You have the right to a lawyer you have faith in, but be sure you’re making the best decision for you and your case before you lawyer. And, be sure to talk to another employment lawyer to get a second opinion on your lawyer’s assessment of your case.