Sometimes a person finds himself wanting or even needing to fire a lawyer who's been hired on a contingent fee basis. Doing that can be very dangerous, however -- and if you act rashly, you may find yourself still stuck owing your now-angry lawyer part of your case, but unable to attract a new one.
1
Only hire a contingent fee lawyer who's upfront about the possibility of being fired and deals with that in your written contract
Like most states, Texas, where I practice, requires all contingent fee agreements to be written.
Of course, the lawyers who write them are acting as businessmen to protect their own interests -- not as fiduciaries protecting yours. You must watch out for yourself at this stage!
At a minimum, contingent fee agreements ought to specify (a) the percentage of your recovery that will go to the lawyer and (b) whether that percentage is calculated before or after the lawyer has been reimbursed for his out-of-pocket expenses.
The most ethical contingent fee lawyers will also anticipate the possibility that you and they might part ways. They will spell out in their written contracts what will happen either if they quit or you fire them. The result will probably vary depending on the reasons, but it's good for everyone to know the whole range of possibilities up front.
If your prospective lawyer hasn't covered these possibilities in his contract, consider looking elsewhere.
2
Re-read your written contract carefully BEFORE you try to fire your contingent fee lawyer
Ideally, your contingent fee lawyer will not only have included provisions in your written contract governing the circumstances under which he can quit or you can fire him, he will also have discussed those with you in detail before you hired him.
Even if he didn't, though, there may be "fine print" in your written contract which lays out your and his respective rights and obligations.
Make an extra copy of the contract. Sit down in a quiet room with a yellow marker in your hand, and then mark on that extra copy everything you can find that seems like it might possibly relate to him quitting or you firing him.
Put it aside. Take a walk around the block or a shower. Then come back and re-read what you've highlighted.
If you're not sure you understand what you've highlighted on the contract or -- as is quite possibly the case -- your lawyer simply didn't put anything in the contract about when he could quit or when you could fire him, then you're going to need a second opinion.
3
Don't get your second opinion from Uncle Bud or Bertha at the office -- consult another lawyer
It always amazes me how few people actually seek the proverbial "second opinion." People definitely should do that more often than they do.
But you don't want to be getting legal opinions -- especially about something like firing your contingent fee lawyer -- from someone who's not a lawyer.
In the first place, they probably don't know what they're talking about.
In the second place, to get a second opinion, you're going to have to share confidential, sensitive information -- like what your existing contingent fee lawyer has TOLD YOU and WRITTEN TO YOU. If you share that with ANOTHER LAWYER, then it can still be protected by attorney-client privilege.
If, instead, you share it with Uncle Bud or Bertha at the office, you may have waived attorney-client privilege forever. And when you get asked under oath, "Who have you talked to about this matter?" and you say, "Uncle Bud," then the next question will be "What did you tell Uncle Bud?" And no one will be able to say, "Objection!"
4
Consider the motives of the lawyer giving you the second opinion
When a new lawyer is looking to get hired to replace someone's existing lawyer, he's got an extra incentive to be super critical -- to nit-pick.
Consider getting your second opinion -- on the question of whether you can fire your existing contingent fee lawyer -- from a lawyer who doesn't have that motivation to nitpick because he's trying to get himself hired.
You may be able, for example, to get enough guidance from a legal aid clinic or a local bar association help hotline -- some place where lawyers are volunteering, rather than looking for more business.
5
With the help of a second opinion, decide whether you think you have "good cause"
It would be unfair to lawyers to permit clients to make contingent fee agreements -- under which they promise to work on a case, and get it all ready either for settlement or trial -- and then to permit the client to simply dump them in an effort to get out from under their contingent fee obligations.
That's why even if the contingent fee agreement doesn't say anything one way or the other about the client firing his contingent fee lawyer, most states' laws IMPLY an unwritten term into those agreements which protect lawyers.
(You're surprised that courts protect lawyers?)
The implied term is usually this: While the client can fire his lawyer any time, either for a good reason (like the lawyer is incompetent or unethical or won't follow instructions) or a bad one (like the lawyer has an annoying habit), the lawyer won't lose his share of the client's ultimate recovery unless the client had a good reason -- "good cause."
Unless you can show "good cause," you're probably hosed.
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