Unhappy With Your Personal Injury Lawyer in California? Here’s What Happens If You Switch Attorneys
Hiring a personal injury lawyer is an important decision. But what happens if, months into your case, you are unhappy with your attorney?
Maybe your calls are not being returned. Maybe you rarely receive updates about your case. Maybe you disagree with how your claim is being handled. Or perhaps you simply no longer trust that your attorney is the right person to represent you.
Many injured Californians stay with a lawyer they are unhappy with because of one major concern:
“If I switch personal injury lawyers, am I going to have to pay two attorney fees?”
In most contingency-fee personal injury cases, changing attorneys does not mean that the client simply pays two full contingency fees. California law protects a client’s right to change attorneys, while generally allowing the former and new attorneys to resolve their respective rights to the attorney-fee portion of an eventual recovery.
Our experienced San Bernardino personal injury lawyers explain how it works.
Can You Fire Your Personal Injury Lawyer in California?
Yes. A client in California generally has the right to discharge an attorney at any time, with or without cause.
The California Supreme Court recognized this principle in Fracasse v. Brent (1972) 6 Cal.3d 784. The attorney-client relationship depends heavily on trust and confidence, and California law does not generally require a client to continue being represented by an attorney in whom the client has lost confidence.
That means you do not necessarily have to prove that your lawyer committed malpractice or did something unethical before you can seek new representation.
If you believe another attorney would better serve your interests, you generally have the right to make a change.
Will I Have to Pay Two Contingency Fees If I Switch Lawyers?
This is one of the biggest misconceptions about changing personal injury attorneys.
Generally, switching attorneys does not mean that you simply owe two full contingency fees on your recovery.
For example, suppose you hired Lawyer A under a contingency fee agreement. After several months, you become dissatisfied and hire Lawyer B to take over the case.
Lawyer A does not ordinarily get to charge you a full contingency fee for the entire case while Lawyer B separately takes another full contingency fee.
Instead, the former lawyer may have a claim for the reasonable value of the legal services performed before being discharged, commonly referred to as a claim in quantum meruit.
As the California Supreme Court explained in Fracasse v. Brent, this rule helps protect a client’s ability to change lawyers without facing the threat of paying duplicative full contingency fees.
In practical terms, the dispute over attorney compensation is often primarily an issue between the lawyers rather than a reason for an injured client to remain with an attorney the client no longer wants representing them.
How Does the Attorney Fee Work When You Change Lawyers?
Consider a simplified example.
Assume a client has a personal injury claim with a contingency fee agreement. The first law firm works on the case for several months. The client then decides to hire a different personal injury law firm.
The first firm may assert a claim for the reasonable value of the work it performed before the change. The new firm then completes the case and obtains a recovery.
Rather than the client automatically paying two complete contingency fees, the attorneys may need to determine how the applicable attorney fee should be allocated based on their respective rights and the work performed.
California courts have specifically recognized mechanisms for allocating fees among former and current counsel in a way designed to avoid forcing the client to make a double payment of attorney fees.
The key takeaway: You should not assume that changing attorneys means your attorney fees will automatically double.
The precise result depends on the fee agreements, the work performed, the circumstances of the change, and the ultimate outcome of the case.
What Does the Former Attorney Get Paid?
In short, it is up to the new and discharged attorney to figure it out amongst themselves and should not unfairly impact the client.
A discharged contingency-fee attorney may be entitled to the reasonable value of the services performed before the attorney was discharged. This is known as quantum meruit.
It does not necessarily mean the former lawyer receives the percentage stated in the original contingency agreement as though that lawyer had completed the entire case.
Determining a reasonable fee can involve multiple factors, including the amount of work performed, the reasonable value of that work, the nature and difficulty of the case, and the result ultimately obtained.
Importantly, under the rule established in Fracasse, a discharged contingency-fee lawyer’s claim for compensation generally does not mature unless and until the contingency occurs, meaning there is ultimately a recovery.
Can My Old Lawyer Put a Lien on My Personal Injury Case?
A former attorney may assert a claim or attorney’s lien against a future recovery when legally permitted.
That can sound alarming to clients, but an attorney’s lien does not necessarily mean the client suddenly owes an additional full contingency fee.
Instead, the lien may preserve the former attorney’s claim to compensation from the eventual recovery. The former attorney and successor attorney may then need to address how much of the attorney-fee portion is properly payable to each lawyer.
The existence, validity, enforceability, and amount of any attorney lien can depend on the specific fee agreement and circumstances of the representation.
Do I Need My Current Lawyer’s Permission to Hire a New Lawyer?
No.
Your attorney does not get to decide whether you are allowed to seek different representation.
If you retain a new attorney, the new law firm can generally assist with the transition, including communicating the change in representation and obtaining the case file.
You should not feel obligated to remain in an attorney-client relationship solely because you are concerned that your current attorney may be upset about your decision.
What Are Common Reasons People Change Personal Injury Lawyers?
Clients consider changing attorneys for many reasons. Common concerns include:
- Calls or emails repeatedly going unanswered
- Receiving few or no meaningful case updates
- Not understanding what is happening with the case
- Disagreements about settlement strategy
- Concerns that the case is moving too slowly
- Difficulty communicating with the attorney or legal team
- Feeling pressured to accept a settlement
- Losing confidence in the lawyer handling the case
- Discovering that another attorney may be better equipped to litigate or try the case
Not every communication problem requires changing lawyers. Sometimes a candid conversation can resolve the issue.
But if the attorney-client relationship has deteriorated to the point that you no longer trust your lawyer, California law generally does not require you to remain with that attorney.
When Is It Too Late to Switch Personal Injury Lawyers?
There is no single point in every case at which changing attorneys automatically becomes impossible.
However, the later you wait, the more complicated a change may become.
If litigation is underway, depositions have been scheduled, expert deadlines are approaching, or trial is imminent, a new lawyer must determine whether taking over the case is practical and whether the change can occur without prejudicing your interests.
If you are considering switching attorneys, it is usually better to speak with another qualified personal injury lawyer sooner rather than waiting until immediately before a major deadline or trial.
What Happens to My File If I Fire My Lawyer?
Changing attorneys does not mean starting your personal injury case from scratch.
The case itself continues.
Depending on the circumstances, the new attorney may obtain the existing case file and continue handling the claim or litigation. That may include reviewing medical records, correspondence, discovery, deposition transcripts, expert materials, settlement negotiations, and other work already completed.
A new attorney should carefully review the case before agreeing to take over representation, particularly when a lawsuit has already been filed.
Should I Be Afraid to Speak With Another Lawyer?
No.
Speaking with another attorney does not necessarily mean that you have decided to fire your existing lawyer.
A second opinion can help you understand whether your concerns are normal, whether your case appears to be progressing appropriately, and what would happen if you decided to change counsel.
The most important consideration should be whether you have confidence in the attorney representing you.
Frequently Asked Questions About Changing Personal Injury Lawyers in California
Can I fire my personal injury lawyer in California?
Generally, yes. California recognizes a client’s right to discharge an attorney, with or without cause.
Will switching lawyers increase my contingency fee?
Not necessarily. Changing lawyers generally does not mean you automatically owe two complete contingency fees. The former attorney may instead have a claim for the reasonable value of services performed before the change. The precise financial consequences depend on the fee agreements and circumstances of the case.
Do I have to pay my old lawyer immediately?
In a contingency-fee case, Fracasse v. Brent generally provides that the former attorney’s claim for reasonable compensation does not mature until the contingency occurs — typically when the client obtains a recovery.
Can my old lawyer stop me from hiring someone else?
Generally, no. A client’s right to choose and discharge counsel is fundamental under California law.
What if my old lawyer claims a lien?
A former attorney may assert a lien or other claim for attorney fees when legally permitted. The existence of a lien does not automatically mean you owe two full contingency fees.
Can I change lawyers after a lawsuit has already been filed?
Potentially, yes. However, changing attorneys during litigation can involve additional procedural considerations, especially when trial or important deadlines are approaching.
Can I change lawyers right before trial?
It may be possible, but it becomes substantially more complicated. A new attorney must have sufficient time to become familiar with the case, and substitution of counsel cannot be used in a manner that improperly disrupts court proceedings.
Does my current lawyer have to approve the switch?
No. You generally do not need your current attorney’s permission to consult with or retain another lawyer.
Thinking About Changing Personal Injury Lawyers in California?
If you are unhappy with your current personal injury attorney, you do not necessarily have to remain with that lawyer simply because you signed a contingency fee agreement.
California law recognizes the client’s right to choose who represents them. And changing attorneys generally does not mean that a client simply becomes responsible for two full contingency fees.
At LA Century Law, we can review an existing personal injury case and help a potential client understand what may be involved in changing attorneys. Before accepting a transferred case, we evaluate the existing representation, the status of the claim or lawsuit, upcoming deadlines, and any potential attorney-fee or lien issues.
If you have lost confidence in your current personal injury lawyer, getting a second opinion can help you understand your options before making a decision. Contact us today!
Legal Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Attorney-fee rights can vary depending on the language of the applicable fee agreements, the work performed, the circumstances surrounding termination or withdrawal, liens, and other facts. Anyone considering changing attorneys should obtain advice regarding their particular situation. Past results do not guarantee or predict future results.
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