How to Fire Your Lawyer, Part II
In the year 2010, I wrote the blog titled “How To Fire Your Attorney or 50 Ways to Leave Your Lawyer.” Over the years, this blog has been read hundreds of times by people whom I presume are fed up with their lawyer. After all, why would they want to read it if all was well with them and their legal counsel?
Since I wrote it, I have been contacted by people across the United States (and even from Europe) who were wanting to fire their lawyer. And even though we focus only on personal injury law here at the Kramer Law Group, it seems like only a minority of the people who reached out actually had a personal injury case. One thing I learned was that being unhappy with your lawyer is not confined to just one practice area. Indeed, disgruntled clients can be found in almost all practice areas out there.
Sadly, over the last six years, the problems behind people wanting to fire their lawyer remain, and in fact, seems to be escalating. Clients continue to be upset by lawyers who don’t do what they promised, who are not returning phone calls, who are taking money for work they didn’t do, who are rude to their clients, who are “messing up” their clients’ cases, etc. As I expressed in my original blog, while a client is generally free to fire their attorney, doing this in many cases is not always the best call. I’m sure that in many cases, if the lawyer and client were able to sit down together that most of the problems could be resolved. Many, however, don’t have the stomach to do this and are simply “done” with their lawyer, and no amount talking is going to ever fix that.
The Next Step: Get a Second Opinion! Even if you hate your lawyer, keep your head and make sure you can make a change without damaging your case. Although telling off and firing your lawyer in the moment may feel good and “feed the flesh,” the aftermath might be a bitter pill to swallow. So first, Do Your Homework! What I mean is, you want to get a second opinion before you get rid of your lawyer.
If you are unhappy with your lawyer and sitting down with them to discuss your concerns is not an option, I recommend that you first get a “second opinion” with an attorney that practices in the same practice area as your current attorney. These meetings don’t have to cost a lot of money and often might be totally free. For example, a personal injury attorney that works on a contingency fee may agree to meet with you for free, no charge. Even an attorney that charges something for the meeting might well be worth it in the end. But be aware that not every attorney will want to meet with you if you are currently with someone else. They might see you as “damaged goods” or a “red flag” that they instinctively will want to shy away from you.
Under most state’s ethics rules, including Utah’s, however, an attorney can meet with a client who is currently being represented if they are seeing that person to offer a “second opinion” on the facts and applicable law involved in that case. Click here for opinion. You seeing another attorney for a second opinion is not much different than getting a second medical opinion where you want to make sure that the diagnosis or recommended treatment plan for the first doctor is legitimate and reasonable.
One things the Rule (Rules of Professional Conduct 4.2) on this says is that the second opinion of the lawyer should not be used as a way for the lawyer to solicit the case away from the first lawyer. In fact, the opinion says that “the lawyer should make every effort neither to impair the first attorney-client relationship nor to use the consultation as a means of soliciting the represented party.” You are there for information – and the attorney’s opinion – on how they would handle your case if it was in their office.
When I have met with clients, I have told them, in effect, what I would do if this were my case. And this is something you’ll want to ask the attorney you meet with. If it’s a communication problem, ask them how often they stay in touch with their clients how they respond to client phone calls, emails, etc. In other words, ask the attorney about those things you are most concerned with that are happening in your case.
Once you have the benefit of having met with an attorney that practices in the same subject area, then you are in a position to know whether you may have possibly prejudged the attorney or whether they are in fact not doing the job they should be doing in your case. Then you know and you won’t have to second-guess your decision to let your attorney go.
Having been asked to come in as the second (or sometimes third) attorney over the years, I can tell you that the idea of firing an attorney gives most people anxiety. They are not sure it’s going to go well or are worried they won’t “do it right.” I can tell you from experience that the attorney-firing option that clients like the best is when the second attorney handles all those details. This removes much of the anxiety that the client has. When I’ve told the client that I can take care of the “dirty work,” most of them will breathe a sigh of relief.
Now, some timid attorneys might suggest that the client needs to do “the deed” so as to avoid the second attorney getting hit with an attorney lien from the first attorney. (See the discussion about attorney liens here.) To this I would say that the substitute attorney needs to “own up” to the case and be bold about coming in as the replacement attorney. After all, they’ll need to collect all bills, records, reports, statements, photos, etc., that may have been collected by the first attorney. They may even want to have a phone call with that attorney.
And yes, there may be an attorney lien on the case that the first attorney will send to the replacement attorney. This is especially true and applicable in contingency fee, personal injury cases. But this lien amount – whatever it is – will be absorbed by the second attorney. In your personal injury case, it should not increase the total attorney fee that comes out at the end. If the lawyer says that it will increase the amount deducted, then you need to find an attorney that won’t penalize you for your decision to change attorneys.
Finally, I wrote this blog to provide general information to people that might be unhappy with their lawyer. I cannot come into a case like Donald Trump and tell your attorney “You’re fired!” That’s the job of your replacement attorney, as discussed above. You’ll want to get that second opinion mentioned above and ask the attorney the best way to go about replacing your attorney for your state and for your specific legal practice area.
Ron Kramer is the managing attorney at the Kramer Law Group, a Utah personal injury law firm licensed to practice in the state of Utah, Idaho and California.