COUNSEL’S CORNER: be careful when firing your contingency fee lawyer

We have all seen those commercials that promise big money to people that have been involved in an accident and have gotten injured. The one thing they all have in common is that the lawyers always promise “if we do not win your case you don’t have to pay.” This is called a contingency fee contract because you do not have to pay the lawyer when you first hire him. In this type of fee agreement, the lawyer agrees to work for you but you do not pay him until your case is settled.

Now there are times when you and the lawyer discover that you can no longer work together. You have a right to terminate your contract with the lawyer at any time. However, depending on your reasons for firing him, you may still owe him a fee. How is this possible you ask? He didn’t win my case so I don’t have pay, correct? Not correct and here is why.

In most jurisdictions, though not all, if you do owe him a fee, it will be based not on your contingency fee contract, but rather on quantum meruit (meaning “how much is merited”). Depending on when you fire your lawyer during the litigation, this can range from a relatively small sum up to the entire percentage you agreed to in the contingency fee contract with which you signed when you agreed to hire the lawyer in the very beginning of your case, and in a few jurisdictions it can even exceed the contracted amount.

If you hire a new lawyer after firing the old, there are circumstances under which you may end up paying a double attorney fee. So, before you fire your lawyer, consider the risk of having to pay him a fee, how much that fee might be, and how this will affect your overall recovery in the case.

Firing your lawyer should not be a decision made in haste, or in the heat of the moment. It should be a last resort, because it can often create more problems than it solves. Over the years, I’ve received numerous phone calls from plaintiffs who wanted to fire their current lawyers, and the vast majority had one thing in common — they have not had a face-to-face meeting with their current lawyers to address the issues which caused them to want to part ways. Almost all personal injury plaintiffs at one time or another have doubts about their lawyers. Often this arises from a failure by the lawyer to effectively communicate with the client.

Your lawyer may be doing everything he should as far as your lawsuit is concerned, but if he fails to return phone calls or fails to explain why your lawsuit is taking so long, he can leave you with the impression that he doesn’t care about your case or isn’t pursuing it diligently. If you need reassurance that your lawyer is moving your case along as he should, it is often helpful to request to be put on his appointment calendar for a telephone conference or a sit-down meeting to discuss how your case is progressing (or why your case is being delayed).

Of course, not every problem with your lawyer is a mere lack of communication. If your lawyer seems unprepared, this is a legitimate cause for concern. If your lawyer talked tough at the beginning of your case, but now he is pushing you to settle then this is a huge problem. These issues are usually something that can’t be fixed, so it may be time to start looking for a new lawyer as soon as these problems arise.

Now if you have tried to resolve your issues and still find that you have no other alternative but to fire your lawyer, I strongly encourage you to have at least one face-to-face meeting with your lawyer to air your concerns before firing him.

If your lawyer cannot alleviate your concerns during this last meeting, then by all means try to find another lawyer. Again, not all your concerns about your case will disappear with the next lawyer. As is inherent in all litigation, there is an amount of frustration and doubt that is involved. These issues are most effectively handled if you and your attorney have a good working relationship where there is open communication and where your attorney is available to you to address these issues as they arise throughout the litigation.

So the next time you look to hire or fire your lawyer, give it considerable forethoughts so as to avoid any future problems in the future.

The purpose of this column is to provide general information on the law, which is subject to change. It is not legal advice. Consult a lawyer if you have a specific legal problem.

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Published: Feb. 26, 2015 - Volume 13 - Issue 46