I was a full time caregiver for both my parents for the last five years. Sadly my father passed away two years ago and my Mother in July of this year. I am the successor trustee to their estate. My siblings who have not spoke to my parents in a number of years filed a Will contest in probate court. So, I in turn hired an attorney on a contingency fee agreement to help with that matter. My siblings and I have decided to settle out of court. And at first I thought my attorney had my best interest in mind. But now he makes comments about how much he expects ‘to get out of this” and is pressuring me to agree to a settlement which will leave me out on the street and him with the larger fee. I want to fire him and our agreement says I can do so with or without cause. I understand that he needs to be compensated for the work he’s done thus far. But will I still owe my attorney the contingency fee if I let him go and negotiate the settlement with my siblings myself? Thank you in advance.
He took the matter with no money--he's entitled to "get" something "out of the case". You may a second opinion--but it may be the same as the first. Litigation drains the estate--no NO ONE "gets anything".
This is general advice. You are anonymous. If you PM me i won’t know what it’s about.
The answer is likely a bit more complicated and is also likely based on the specific provisions of the fee agreement you have with the attorney. I have included a link to the CA Bar’s sample fee agreement for contingency arrangements, together with two relevant excerpts from it. I do not know whether the actual agreement you entered into (assuming it is indeed a written agreement) is consistent with the sections below, but I hope the example below is helpful. Typically the attorney will want to be paid (and you will be obligated to pay) for the “reasonable value” of all services rendered through the date of discharge. This may be negotiable, depending on the terms of your agreement with him/her, so perhaps you make an offer of $X plus out-of-pocket expenses in connection with the discharge to settle the matter? Good luck.
Attachment B: Sample Fee Agreement Forms: Three Sample Fee Agreements (Clean and Redline)
Sample Fee Agreement Form: Contingency
4. LEGAL FEES
* * *
In the event of Attorney’s discharge, or withdrawal with justifiable cause, as provided in Paragraph 13, Client agrees that, upon payment of the settlement, arbitration award or judgment in Client’s favor in this matter, Attorney will be entitled to be paid by Client a reasonable fee for the legal services provided. Such fee will be determined by considering the following factors:
(1) Whether the Attorney engaged in fraud or overreaching in negotiating or setting the fee;
(2) Whether the Attorney failed to disclose material facts;
(3) The amount of the fee in proportion to the value of the services performed;
(4) The relative sophistication of the Attorney and the Client;
(5) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;
(6) The likelihood, if apparent to the Client, that the acceptance of the particular employment will preclude other employment by the Attorney;
(7) The amount involved and the results obtained;
(8) The time limitations imposed by the Client or by the circumstances;
(9) The nature and length of the professional relationship with the Client;
(10) The experience, reputation, and ability of the Attorney;
(11) Whether the fee is fixed or contingent;
(12) The time and labor required;
(13) The informed consent of the Client to the fee.
13. DISCHARGE AND WITHDRAWAL
Client may discharge Attorney at any time. Attorney may withdraw with Client’s consent or for good cause or if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Among the circumstances under which Attorney may withdraw are: (a) with the consent of Client; (b) Client’s conduct renders it unreasonably difficult for the Attorney to carry out the employment effectively; and/or (c) Client fails to pay Attorney’s costs and expenses as required by this Agreement. Notwithstanding the discharge and provided there is a recovery, Client will remain obligated to pay Attorney at a reasonable rate for all services provided and to reimburse Attorney for all costs advanced.
Notwithstanding Client’s notice of discharge, and without regard to the reasons for the withdrawal or discharge, Client will remain obligated to pay Attorney for all costs and expenses incurred prior to the termination and, in the event that there is any net recovery obtained by Client after conclusion of Attorney’s services, Client remains obligated to pay Attorney for the reasonable value of all services rendered from the effective date of this Agreement to the date of discharge. In the event Attorney voluntarily withdraws from representing Client without cause, Attorney waives, and will not be entitled to be paid, any fees by Client but will be entitled to be reimbursed for any costs and expenses already advanced by Attorney.
Martin A. Sabarsky is licensed to practice law in California and not in any other state or jurisdiction. This response is for informational purposes only and should not be construed as legal advice for any particular case or client. This posting does not create an attorney-client relationship and is not covered by attorney-client privilege. For specific advice about your particular situation, please consult with an attorney retained specifically for your situation. This response is not intended to constitute an advertisement nor a solicitation.
Your attorney is likely entitled to his fee based on your facts. It sounds like you will not be hiring another attorney. If you did, in that case he would get a portion of his fee for the work he did but you cannot just fire him because you and your siblings have come to an agreement and then just not pay him.
Since your attorney took the case on contingency, he is entitled to a reasonable fee for his services if you fire him. This is true whether or not you have a written fee agreement.
If a written fee agreement, the agreement might define how a reasonable fee will be determined. Still, you can always arbitrate the attorney’s fee through your local bar association.
If you have a conforming written contingency agreement, your attorney is entitled to a lien on any settlement. You will not be able to settle around the lien as you attorney will be named on any settlement check.
Assume the entire contingency fee must be paid if you fire your attorney and settle on your own. Do not make the false assumption that you will put more money in your pocket.
My answers are for general information only. They are not legal advice. Answers assume California law. I am licensed only in California. Do not rely on my answers. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship, nor does my answer or comment create a reasonable expectation that I am willing to discuss the possibility of forming an attorney-client relationship with anyone. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement. The communications on this website are not privileged or confidential. I assume no duty to anyone by my participation on Avvo because I have answered or commented on a question. Specifically, I assume no duty to respond to any question, comment, telephone call, or email. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take action, and because I do not provide legal advice or counsel in answer to any question, if you are an interested party you should promptly and personally consult an attorney licensed in the appropriate jurisdiction for advice and counsel. See, also, Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.
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