Few changes are as onerous as having to switch attorneys in the middle of an issue, especially in an active lawsuit.
We recently covered some basic tips on how to vet and hire the best legal counsel. The other side of that coin is the best way to terminate a legal business relationship like any other, but few changes are as onerous as having to switch attorneys in the middle of an issue, especially in an active lawsuit. If that is the case, carefully consider the points below.
Understand Why You Are Ending the Relationship
Realize that results, especially in the context of a court issue where someone else is deciding the issue, are not in your attorney’s full control. Ask yourself if they used the requisite skill and effort in addressing your issue and if another attorney could have reasonably gotten a better result based on some relevant professional feedback. If you’re not sure, consider simply consulting with other counsel about your issue and see if their plan of action and tactics would have been substantially different, it may be worth paying for a couple of hours to confirm the course you are pursuing.
Sometimes there are unsolvable communication or personality conflicts that make productive action difficult. Other conflicts are often related to performance like meeting deadlines, knowledge of issues, timeliness in returning calls, billing and the like. If these issues can’t be resolved after you’ve complained, move forward in a professional way and send formal written notice of your intent to sever the relationship as of the date of receipt of the letter.
Understand What Ending the Relationship Will Cost You Financially
Step one is read your retainer agreement and understand what you agreed to and how termination and the refund of fees is calculated. Realize that if you’ve contracted (that’s what a retainer agreement is, a contract) for the creation of legal documents or the performance of some specific action and your lawyer has done the work, you own it. Consider the analogy of a patient saying they’ve changed their mind after you’ve operated. The costs were incurred, the time was spent the work was done.
You’ve also likely invested at least some “paid for” time in the relationship and that time may have to be duplicated by a new attorney that needs to be brought up to speed, review documents, and unavoidably duplicate some efforts. It may be a good idea to get a statement of your current billing and fees, especially if you are being billed against a retainer before you terminate the relationship. This will let you know how much of your retainer is due back to you and provide a good picture of where they are billing you. It may also, frankly, help prevent last minute “add-ons” to your bill.
Also, be aware that issues handled on contingency fee often bill out at a high dollar value. Some attorneys will transfer a case and collect for the amount the retainer agreement said you would owe by the hour from your new counsel; others will expect, per the retainer agreement, to be paid on termination.
Understand the Effect on Your Case
The second vital component of cost is the effect on your case and the results you seek. It may often be more productive to grit your teeth and finish an issue with effective counsel you don’t like than to switch, especially if you are in the home stretch. If the counsel is themselves the factor creating uncertainty, act decisively. Remember that the fired lawyer will often be key to supplying your new counsel with documents, information, and other resources vital to your continued progress. Try to be amicable and professional and part as friends, it’s in your best interest.
Have a Succession Plan
Decide what worked and what didn’t and what you expect from your new counsel and make those expectations clear to avoid the same results. Selecting counsel takes time and I have seen people surprised with a change in the case or being served with legal process of some kind that made them panic and jump sooner than they would have liked. Once you’ve chosen, ask them to provide you and former counsel with an outline of documents they require and a timeframe within which they need them. Your former attorney is required to turn over documents related to your case to new counsel, the speed and price at which that happens will in part be determined by your relationship and how it ended.
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