Once you've hired a lawyer for your wrongful termination case, you might think it will be smooth sailing right through your trial. We hope you're right. Some clients, however, lose confidence in their lawyers as the relationship proceeds. If you're one of them, you might be wondering whether you should stick with your lawyer or make a change.
Of course, you want your lawyer to be qualified, experienced, and ethical. You likely vetted your lawyer for these qualities before signing a retainer agreement. But other factors are important, too. The lawyer-client relationship calls for a high level of trust on your part and an open channel of communication between you and your lawyer.
You may start to question your lawyer for a variety of reasons, some of which should prompt you to strongly consider firing the lawyer and hiring someone new. But there are important factors you need to consider first.
Not all lawyers have a good “desk-side” manner; in fact, a trait that makes a person effective in the courtroom (such as dogged tenacity) can be a bit unpleasant in other settings. The personal abrasiveness of your lawyer is likely an acceptable burden to bear in exchange for results. However, if your lawyer displays certain other types of traits or conduct, you may want to think about making a change. Here are some of the most common and troubling red flags.
Lawyers losing touch with clients and not returning calls or responding to email messages and other correspondence is the leading cause for disciplinary proceedings against lawyers in many states. When you hire a lawyer to represent your interests, it is vital that the lawyer keep you up to speed on what's happening with your case. If the lawyer drops the ball and blows a deadline, for example, you may be on the hook financially or your right to pursue legal claims may be forever lost.
Of course, lawyers are busy and may not be able to respond immediately to every inquiry. But if you send a brief request for an update, you should get a response within a few days.
Lawyers must be free to exercise professional judgment (by deciding how to argue legal issues or phrase requests for documents, say). But, as a general matter, your lawyer should get your approval before taking any action that may permanently affect your rights. For example, your lawyer cannot settle your case without your approval.
The professional rules governing the practice of law in every state restrict lawyers from mishandling clients’ money. At times, you may give your lawyer funds for costs or even fees, out of which the lawyer is to draw only costs or fee reimbursements that are properly invoiced. Or, payments by other parties to clients may be placed in special accounts for disbursement.Such money is placed in a trust account, which means that the lawyer is holding it for the client in trust; it is not the lawyer’s money. A lawyer who “commingles” money from other sources with trust account funds or who improperly takes money from the trust account is violating the professional rules and mishandling client money.
You have the right to replace a lawyer if you are not satisfied with the lawyer's services. But this can be risky, as discussed below. Before making that decision, here are a few steps to consider taking first:
If you still lack faith in your lawyer’s ability to represent you, then you need to consider how to change lawyers and what the consequences will be.
It is a mistake to act rashly and just axe your lawyer without a plan B, no matter how tempting the lawyer makes it. You need new representation lined up right away, especially if you are a party to a lawsuit. And, you need to think about the effect switching lawyers will have on your case, the fees you will owe, and the retainer you already paid.
Even before you have the “break-up” talk with your original lawyer, you should at least have narrowed down the list of possible replacement counsel. Get referrals and, if at all possible, discreetly consult with possible replacement lawyers to make sure one would be interested in and available to take your case. For more information about finding a lawyer for a wrongful termination case, see Hiring a Lawyer After You Are Fired for Cause.
The further your lawsuit has proceeded before you decide to replace your lawyer, the more difficult it is for the new lawyer to step in smoothly. And, replacing your lawyer may delay the proceedings.
Your fee or retainer agreement with your original lawyer will specify what you will have to pay your first lawyer if you fire her. If you don’t have a written fee agreement, the original lawyer may still seek reasonable compensation for any hours already worked on your behalf. A new lawyer will definitely want to review your retainer agreement with your first lawyer and discuss possible fees owed before deciding to take over your case.
Unless your first lawyer committed malpractice or mishandled your funds, you probably won’t get a refund of fees you already paid. This includes any retainer amount you may have paid, unless the retainer agreement specifies otherwise.
If you have made the decision to replace your lawyer, send her a letter stating that you no longer want the lawyer to represent you. In the letter, request that the lawyer make all of your case files available to you to retrieve. Your new counsel will want those files, and they are your property (with certain limited exceptions). Your new lawyer will have to file a document informing the court that he or she is substituting in as your new counsel.
If you are justifiably upset with your lawyer, it can be hard to slow down, take a deep breath, and consider your options. Before you make a change, it's important to take a close look at your retainer agreement, talk to your lawyer and other lawyers, and consider the possible effect a switch of counsel could have on your case. Then, make the decision that will best protect your interests.