Switching Lawyers in Your Employment Discrimination Case

Find out whether it makes sense to switch lawyers in your employment discrimination case.

Are you unhappy with your employment lawyer? You may have carefully selected a lawyer to represent you in your employment discrimination case but, after working with the lawyer, you’ve decided he or she is just not right for you or your case. Can you change lawyers? And is it a good idea to do so?

The short answer is, yes, you can change lawyers at any time (subject to any limitations in the contract you signed with your attorney, which is discussed below). But, even if you have the right to change lawyers, it may not be the best strategic move for you and your case. Changing lawyers is a big decision and, depending on when and how you do it, can have potentially negative repercussions. Here’s the run-down.

Attorney-Client Relationship

Your relationship with your lawyer is governed by the attorney-client agreement (also called a “retainer agreement”) that you signed at the time he or she agreed to represent you. Most retainer agreements have a provision stating that the client may “fire” the lawyer under certain conditions. Often, the agreement will state that the lawyer must consent to being removed as counsel. Most lawyers will willingly agree to a substitution if a client requests it, because it’s usually not in the attorney’s interest to try to force a client to continue the relationship. However, even if the lawyer doesn’t consent to being replaced, a client can always fire the lawyer at any time. But, that decision may have repercussions, as discussed below.

Another condition to changing lawyers typically involves payment of fees. For example, if a client wants to end the relationship, many retainer agreements require the client to pay the lawyer for work done up to that point at a set rate. However, even if you don’t have a written agreement to that effect, you will probably still be on the hook for the reasonable value of his or her services under state law.

This payment may be at the lawyer’s hourly rate, it may be a percentage of an award you receive, or it may be based on some other formula or accounting. Depending on how much work your attorney has done, you could owe your former lawyer a lot of money if you decide to switch. And, it can mean that a new lawyer will be less interested in your case because he or she will have to share a portion of his or her attorneys’ fees with your former lawyer.

Working Together

You and your lawyer will be working closely together, often in stressful situations (such as at depositions or at trial) and under the time constraints and pressures of litigation. It is essential that you’re comfortable with your lawyer, that you have faith in his or her integrity and skill, and that you can communicate effectively with him or her. Of course, you and your lawyer don’t need to be best friends, have similar personal interests, or even like each other. But, if any of the essential aspects of the professional relationship are broken or uncertain, you should consider changing counsel.

Employment Discrimination Representation

Although any attorney-client relationship must be based on confidence, trust, and good communication, this is particularly important in an employment discrimination case. Employment discrimination cases have unique features that demand a good working relationship between attorney and client, including:

  • the emotional nature of discrimination and its effect on those who experience it
  • the highly-charged nature of an allegation of discrimination and the effect on those who are accused of it, and
  • the “he said/she said” nature of the evidence in many such cases (where there are no witnesses to discriminatory slurs, for example).

Just preparing for your deposition may be an emotionally trying experience, as you must remember and re-live unpleasant and offensive experiences. You and your lawyer need a comfort level to get through this and other difficult stages of an employment discrimination lawsuit. (For general information on these types of cases, see our page on Your Rights Against Workplace Discrimination & Harassment.)

Changing Counsel

If you believe that your lawyer is not the right person to represent you, you can and should consider changing counsel. But, you should be prepared for the potential repercussions, some of which could adversely affect your chances of winning your case.

Stage of the Action

One of the most important factors to consider is how far along your case is in the litigation process. If you hired your lawyer relatively recently and your lawyer hasn’t filed anything or spoken with the lawyer on the other side, it should be relatively easy and risk-free to change lawyers.

But, if your case is set to go to trial next week, you should think very hard about trying to change counsel. First off, a judge may not agree to postpone your trial date so that you can find a lawyer and he or she can get up to speed on your case. You definitely don’t want to be without a lawyer during trial! And second, few lawyers will want to step into a case that is so far along. It will require a lot of work for the attorney to prepare for trial with such short notice, and as discussed above, the attorney will likely have to share a portion of his or her fees with your former lawyer.

If you’re somewhere in the middle of these two extremes – for example, you’re in the litigation process but you still have several months until trial – you’re in a reasonable position to try to switch counsel. Depending on how much work has been done, and how well your case is going, you may be able to find a new lawyer who is willing to step in. In general, the earlier you make the decision to try to find new counsel, the better.

Possible Negative Consequences

Informing your lawyer that you want to change counsel could be uncomfortable and even combative if the lawyer is resistant to the switch or demands immediate payment of his or her fees. This is a distraction you don’t need when you are in the middle of a discrimination case. And, you may have difficulty finding another lawyer, as mentioned above.

Another possible negative effect is on how the other side views your case. Although your employer and its lawyer will never know the reason for your decision to switch lawyers (because your lawyer is bound by the attorney-client privilege to keep all matters between you confidential), they may speculate that your case is weak or that your lawyer lost faith in you or your claims. This could make settlement negotiations more difficult.

How to Go About It

The first step to take is to gather resources to try to locate new representation. Talk to some employment lawyers to see if they are interested in your case and would be willing to represent you. There’s no point in telling your current lawyer that you want to switch attorneys if you can find one willing to take your case. For more information about how to find and hire an employment lawyer for your discrimination case, see Nolo’s article, Finding and Hiring an Employment Discrimination Lawyer.

If you feel confident that another lawyer will take on your case, inform your lawyer that you wish to end your professional relationship. You should notify your lawyer in writing and request your client file (in most cases, your lawyer cannot withhold your client file until you pay his or her attorneys’ fees). Once you and the lawyer have agreed to part ways, the lawyer should prepare a substitution of counsel to file with the court in your case (if necessary). It is best if this is filed after you have secured other counsel so that the court and other side can be notified of your new representation.

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