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.
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.
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!"
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.
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.
What happens when you fire a contingent fee lawyer without "good cause"?
The answer to this question varies from state to state, but in most states and most circumstances, the lawyer gets to sit back and watch.
If you manage to win the case, or get a settlement, without a lawyer, or if you find a new lawyer who does that for you, then your former contingent fee lawyer may show up when it's time to split the goodies and say "I want my share."
In fact, even after he withdraws from representing you in court (or even if you fired him before suit was filed), he may enter an appearance in the case -- an "intervention" -- to assert a lien on any proceeds you recover, to make sure nobody can pay you without also satisfying his claim.
Does that mean if you fire a contingent fee lawyer without "good cause," you might have to pay twice?
Yes, you might.
But it may even be worse than that. If you fire a contingent fee lawyer without "good cause," you might not be able to find another lawyer to even take your case even if you were willing to pay twice.
If you've given Lawyer Jones a 33% share, and you've fired him without good cause, and you then go try to hire Lawyer Smith, Lawyer Smith might say, "Hmmm. If I take another 33%, that doesn't leave but 34% for you. That means all my work is going to be benefiting old Lawyer Jones along with me and you. I'm just not that interested in helping him out. Sorry, this case isn't for me, look elsewhere."
The best way to handle the firing of your contingent fee lawyer is to get a new lawyer who thinks he can help you establish "good cause"
Most laymen are not going to be able to make a smart decision about whether a lawyer's misbehavior does or doesn't rise to the level of "good cause," but most lawyers can size that up.
And if you have a strong factual argument that your contingent fee lawyer has done something that gives you "good cause" to fire him, then your prospective new lawyer can help you sharpen and clarify that argument, and to ensure that you're prepared to present it in the most effective way if you end up having to fight over the firing.
As a practical matter, if you can't find a new lawyer who's eager to take on this fight, you probably don't have "good cause," or maybe your case was never very good to begin with. Either way, you may want to reconsider firing the original lawyer -- even if he's a schmuck, you may be better off with him than with nobody.
Beware "quantum meruit" -- the hidden danger even when you have "good cause" to fire
There's a lot of variation on this from state to state, but in Texas and many other states, even a lawyer who's been fired for "good cause" may still have some right to get paid.
Even though he may not be entitled to the percentage of your recovery for which he originally contracted, he may be entitled to claim the "fair value" of the work he performed before he was fired.
Of course, if he was a truly awful lawyer who never did any work of value, that may work out to nothing, or not very much. And it's a pretty rare judge or jury who will both find that there was "good cause" to fire a lawyer, BUT also that he did a lot of valuable work.
Just be aware that having "good cause" may not get you entirely off the hook.
Additional resources provided by the author
I've written about a couple of real-life disputes that people have had when they've fired their contingent fee lawyers on a post on my weblog, which is linked below.
There are actually good reasons why the law protects lawyers from being arbitrarily fired from their contingent fee cases. But very few clients are actually trying to cheat hard-working and capable lawyers out of their fees; those clients tend to be happy and satisfied. Far too many folks, though, assume they can fire their contingent fee lawyer without much downside. The point of this Guide is to warn you that that's not true. There are big risks. But there are ways to minimize them, by hiring the right lawyer to begin with, getting your rights clearly specified in writing up front, and, if need still arises, by getting sound legal advise BEFORE you haul off and give yourself the satisfaction of saying "Youre fired!" and stomping out of the room.