Can you fire your personal injury lawyer?
It’s not uncommon for us to get a call from someone who wants to fire their lawyer. Perhaps they’ve found the law firm is slow to respond, or perhaps the lawyer is completely unresponsive. It may be the lawyer hasn’t helped them get into treatment. Or perhaps they have lost faith that the attorney is going to fight for them. Whatever the reason, the question comes up: Can you fire your personal injury attorney?
The answer is “yes,” but there are things you should be aware of before you fire your lawyer in a personal injury case to make sure you are doing it right.
Understanding Your Contract or Letter of Engagement
Most personal injury attorneys in Texas operate on a contingency fee basis, meaning their payment depends entirely on winning your case. This will be laid out in your contract or your letter of engagement with the lawyer. Through a contingency fee arrangement, attorneys typically charge a third of any settlement if your case resolves before litigation begins. However, if your case proceeds to trial, this percentage usually increases to 40% to account for the additional work and resources required.
The first thing you want to do is review the letter of engagement to see what claims the attorney will make if you terminate the contract. For example, most contracts will say that the attorney will retain a claim against any recovery even if they are terminated. You will want to pay attention to see if the claim is for their fee (which there they can make under some circumstances) or if it is for case expenses.
Understanding Attorney Liens and Case Expenses
When an attorney invests time and resources into your case, they may place a lien on any future judgment to ensure compensation for their efforts. This legal mechanism protects attorneys who advance costs on behalf of their clients. These expenses typically include court filing fees, expert witness compensation, investigation costs, and other necessary disbursements that accumulate during your case.
Even if you change attorneys, your original lawyer may maintain this lien to recover their documented expenses and the reasonable value of services provided. This aspect of legal representation often surprises clients, making it essential to understand from the beginning.
Claims for Attorneys Fees (As Opposed to Case Expenses)
You may see that your contract says your attorney will claim attorney’s fees, not just case expenses. You should proceed more cautiously here and make sure you document the termination was for “just cause” here.
The Texas Supreme Court in Mandell & Wright v. Thomas established that if you discharge an attorney hired on a contingency fee basis without good cause before the case concludes, the attorney may seek compensation either through:
- Quantum meruit: Payment for the reasonable value of services provided.
- Enforcement of the original contract: Collecting agreed-upon fees from any damages recovered.
Therefore, it’s crucial to have just cause when terminating the relationship to avoid additional financial obligations.
Just Cause for Termination
In Texas, there are several common grounds that justify the termination of an attorney-client relationship for just cause.
The most common reason is a lack of communication. This occurs when an attorney consistently fails to return calls, emails, or messages, does not keep the client informed about important developments in the case, or neglects to provide updates on case progress and next steps.
Neglect of a case is another serious issue. This includes missing important deadlines such as filing necessary documents with the court, failing to attend scheduled hearings or meetings, and not conducting essential investigations or discovery processes. Incompetence or lack of skill can also warrant termination. This is evident when an attorney demonstrates a lack of knowledge about relevant laws or legal procedures or makes significant errors that jeopardize the client’s case.
Breach of fiduciary duty is another valid reason for termination. This happens when an attorney acts in a manner contrary to the client’s best interests or misuses funds or property entrusted to them. Failure to follow instructions is also significant. It involves ignoring the client’s lawful and reasonable directives regarding case strategy or making decisions without the client’s consent that materially affect the case.
These are just a few examples of “just cause” to terminate a lawyer.
Documenting Just Cause
When considering a change in representation, proper documentation becomes crucial. Keep records of all communication attempts, missed appointments, or other issues that may constitute just cause for termination. This documentation can prove invaluable if fee disputes arise later.
If you are considering terminating your personal injury, be sure you document your reasons why.
Template: Letter to Fire Your Lawyer for Just Cause
For example, if you are terminating your lawyer for just cause based on a lack of communication, your termination letter may look like:
[Your Name]
[Your Address]
[City, TX Zip][Date]
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED[Attorney Name]
[Law Firm Name]
[Firm Address]
[City, TX Zip]Re: Termination of Legal Services for Just Cause
[Case Name/Number if applicable]
[Date of Loss: XX/XX/XXXX]Dear Mr./Ms. [Attorney Last Name]:
I am writing to terminate your legal services effective immediately. This termination is for just cause due to your continued failure to communicate with me about my case. Specifically:
1. You have not returned any of my phone calls on:
• Date and time 1
• Date and time 2
• Date and time 32. I have not received any updates about my case since [date], despite multiple requests.
Please immediately provide me with a complete copy of my file. Under Texas law, these files belong to me. Please include all:
– Medical records
– Correspondence
– Investigation materials
– Photos
– Witness statements
– Insurance communications
– Settlement offers
– Pleadings
– Expert reports
– Any other documents related to my casePlease send my complete file to my email: [Email]. You can also mail the case file to me on a USB thumb drive by Certified Mail with a tracking number to my mailing address listed at the top of this letter.
Also provide an itemized list of any expenses you’ve advanced or spent on my behalf. If I do not receive an itemized list of expenses from you in 14 days, I will understand that you are not making any claims for expenses against any future judgment or settlement.
Please confirm receipt of this letter within 48 hours.
Sincerely,
[Your signature]
[Your printed name]
When you decide to change attorneys, a formal termination letter serves as your official notice. This letter should be professional, specific, and sent via certified mail to create a record of delivery. Request your complete case file and an itemized statement of any expenses your attorney claims.
If your case is already in court, additional steps become necessary. Your new attorney must file a “motion for substitution of counsel,” and your former attorney may need to file a “motion to withdraw.” These legal formalities ensure the court recognizes your new representation and maintains proper case management.
Your Rights to Case Files and Documentation
Under Texas law, clients own their case files. This fundamental right means you can request and receive all documents and materials related to your case at any time. Your attorney must promptly comply with such requests, particularly if you decide to seek new representation. This ownership right ensures transparency and helps maintain the balance of power in the attorney-client relationship.
Securing New Representation
While you are going through the process of firing your existing lawyer, you should also be in the process of retaining a new personal injury attorney to assist you with your claim. Interview your prospective lawyer. Make sure you are confident you are not going to run into similar problems. Read their reviews. You might consider setting an appointment to visit with them in person. Let them know you are terminating your current attorney, and why you are doing so. You will want to get your case file from your current attorney and provide it to your new attorney as soon as possible.
Protecting Your Interests During Transition
During the transition between attorneys, several key interests need protection. Ensure no deadlines or court dates are missed. Your new attorney should review your case file immediately to identify any upcoming obligations. Your new attorney should also evaluate any liens or claims against your potential recovery. This evaluation helps you understand your financial obligations and ensures appropriate distribution of any settlement or judgment funds.
Moving Forward with Your Case
After changing attorneys, maintain open communication with your new representation. Discuss any concerns from your previous experience and establish clear expectations for communication and case management.
Remember that changing attorneys shouldn’t significantly delay your case, though some adjustment period is normal as your new attorney reviews your file and develops their strategy. Stay engaged in your case and maintain records of all communications and developments.
Final Considerations
Understanding your rights and responsibilities in the attorney-client relationship empowers you to make informed decisions about your legal representation. Whether working with your original attorney or transitioning to new counsel, clear communication, proper documentation, and knowledge of your rights remain essential to protecting your interests and achieving the best possible outcome in your case.