You will need to discuss this matter with the new attorney. The payment of fees will depend on the work done by the prior attorney on the case. Make sure the agreement with the new attorney is in writing and clearly delineates the terms of representation and how the attorney fees with the prior attorney will be handled. Good luck with your case.
First of all, I am very sorry that things did not work out with your present attorney. Nevertheless, in California your previous attorney would be entitled to fair and reasonable compensation for the work performed and reimbursement for any expenses paid on your behalf while prosecuting your case.
If what you desire is to have all attorney fees equal to no more than 33% of the settlement, there are a couple of ways to achieve this: 1) make an appointment with your first attorney and discuss why you believe you need to retain a new one and ask if he or she will forgo all interest in your case, in writing, but for reimbursement for expenses. He or she may do it. 2) explain your situation with your new attorney and explain your desire for the total fees in the case to equal no more than 33% plus his or her expenses. Attorney fees in California are negotiable and thus he or she may work with you on this matter depending on the nature of your case.
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Although I am not aware of California law on this issue, generally speaking, in a contingency fee context, it is only the attorney who brings about the contingency i.e. settlement or verdict, that is entitled to the fee. That being said, the discharged attorney is not left without any recourse to recover for the value of his services rendered. In PA the claim is called quantum meruit, which is a quasi contract claim for services rendered. Although the claim is technically against the client, the subsequent attorney who brought about the contingency for you should deal with that prior attorney and either agree to pay him for some fixed amount of time spent on your case or as is very common in these scenarios agree to pay a portion of the fee that he earns on your case, with your consent of course. Again, California may have different precedent when dealing in this context but typically the law favors the client's ultimate right to fire his or her attorney at any time for any reason.
You should contact the California Bar Association and ask if they have an ethics hotline for more information.
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In many states a lawyer is only entitled to what is called quantum meruit, which is the fees which he has earned. Your old lawyer will file a lien with the new lawyer asking for some of the fees in the case. You will still not be responsible for more than the 33 1/3 percent though.
It depends on: 1) How much work the first lawyer has done, and 2) Whether the first lawyer has a settlement offer, and 3) If so, how close to the full value of the case is the offer, and 4) How much the new lawyer wants your case. For example, let's say old lawyer has offer of $12,000 and is telling that is good offer and you should take it. If new lawyer thinks he or she can get you $40,000, new lawyer might be willing to sign you up at 33.33% and promise to take care of any claim of old lawyer. If old lawyer was on a 33.33% fee and he told you the case was worth $12,000, he should be willing to take $4,000 out of new lawyer's fee.
But if new lawyer thinks case is worth $16,000, he's not going to bother with you if old lawyer has an offer of $12,000.
You question illustrates the importance of choosing your lawyer carefully.
Also, please be aware that there is nothing magic about a 1/3 or 33.33% contingent fee. Some lawyers charge more; some less.
At my firm of Reed & Mansfield in Las Vegas we only charge 25% for any Nevada or California car, truck, motorcycle, or boat accident case in which there is a favorable police report that blames the other side and not our client. This 25% fee remains at 25% no matter what: even if we have to try the case. We do don't use your fee to pay for billboards and tv advertising.
We occasionally get a call from a client who has signed up with another attorney who is charging them 33% or 35% or 40% and then wants to switch to us at 25%. Unfortunately, if the first lawyer has done any significant work on the case (compared to its value), the first lawyer's fee claim makes it impractical to transfer to us.
Again, this emphasizes the importance of choosing your personal injury attorney wisely the first time based on both the attorney's rating and reputation and upon the fee agreement.
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