Can I Fire My Lawyer? Yes, But You May Still Have to Pay Him

Can I Fire My LawyerDespite having a written contingency fee contract with your lawyer, you can fire him at any time. However, depending on your reasons for firing him, you may still owe him a fee. In most jurisdiction, though not all, if you do owe him a fee, it will be based not on your contingency fee contract, but rather on quantum meruit (meaning “how much is merited”). Depending on when you fire your lawyer during the litigation, this can range from a relatively small sum up to the entire percentage you agreed to in the contingency fee contract (in a few jurisdictions it can even exceed the contracted amount). If you hire a new lawyer after firing the old, there are circumstances under which you could wind up paying a double attorney fee. So, before you fire your lawyer, consider the odds of having to pay him a fee, how much that fee might be, and how this will affect your overall recovery in the case.

Don’t Fire Your Lawyer Unless You Have To

Firing your lawyer should not be a decision made in haste, or in the heat of the moment. It should be a last resort, because it can often create more problems than it solves. Over the years, I’ve received numerous phone calls from plaintiffs who wanted to fire their current lawyers, and the vast majority had one thing in common — they had not had a face-to-face meeting with their current lawyers to address the issues which caused them to want to part ways. Almost all personal injury plaintiffs at one time or another have doubts about their lawyers. Often this arises from a failure by the lawyer to effectively communicate with the client.

Your lawyer may be doing everything he should as far as your lawsuit is concerned, but if he fails to return phone calls or fails to explain why your lawsuit is taking so long, he can leave you with the impression that he doesn’t care about your case or isn’t pursuing it diligently. If you need reassurance that your lawyer is moving your case along as he should, it is often helpful to schedule a phone conference (so there’s no chance you won’t get called back) or a sit-down meeting to discuss how your case is progressing (or why your case is being held up). Most lawyers prioritize working client files over keeping their clients informed about said work (which is often viewed by lawyers as “hand holding”). Based primarily on a few “problem” clients over the years who expect a law school education every time they call for a status update, many lawyers procrastinate when it comes to contacting their clients for fear of being trapped on the phone forever. So, if it seems like your lawyer is ducking you, it’s probably due to the sins of a former long-winded client (unless you also happen to be one of those long-winded clients). If you have a heart-to-heart with your lawyer and show him that you value his time, this will usually fix communication problems.

Of course, not every problem with your lawyer is a mere lack of communication. If your lawyer seems unprepared, such as at depositions or mediation, this is a legitimate cause for concern. If your lawyer talked tough at the beginning of your case, but now that it appears that you may have to go to trial he’s ready to fold like a cheap suit for an unreasonably low settlement offer, this is also a huge problem. These issues are usually something that can’t be fixed, so it is best to start looking for a new lawyer as soon as they arise.

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If you are thinking of firing your lawyer, I strongly encourage you to have at least one face-to-face meeting with your lawyer to air your concerns before firing him. If your lawyer cannot alleviate your concerns during this meeting, then by all means try to find another lawyer. Just know that firing your lawyer carries with it a lot of headaches.

If You Fire Your Lawyer, It May Be Harder to Find a New One

Finding a new lawyer after you’ve fired (or are ready to fire) your old one will likely be more difficult than hiring a lawyer from scratch. Lawyers are wary of clients who’ve fired another lawyer. You could be an unreasonable “problem client”, or you could have an abrasive personality. You’ll likely be less trusting than a client who never had a prior issue with his or her lawyer. Even if the potential new lawyer blames the old lawyer for the firing, he may be reluctant to take a case that may have already been screwed up by that lawyer. Finally, the potential new lawyer may have concerns about you owing the old lawyer a fee. Your new lawyer could be faced with two equally distasteful options:

  1. Agree to take a smaller fee to offset the amount you may old the old lawyer; or
  2. Take a full fee, and risk you not being willing to settle because of the amount you’ll have to pay to both lawyers.

This brings us to the million dollar question: Do you have to pay your old lawyer a fee, and, if so, how much?

Do I Owe a Fee to the Lawyer I Fired?

If you fire your lawyer without good cause (e.g., you have no complaint with your current firm, but you just decided that you’d rather have your son-in-law’s law firm take the case) you will definitely owe the discharged lawyer a fee. Whether this fee will be the full amount of the contingency fee contract, or quantum meruit, will vary from state to state. The majority of states hold that an attorney who is discharged before the contingency in the contract takes place (a monetary recovery), even without good cause, is only entitled to quantum meruit (and of course, because we lawyers need to make things overly complicated, the issue of how this quantum meruit amount is determined varies from state to state, and even from case to case within the same state — more on this later).

If you fire your lawyer with good cause, the majority of states will not allow the fired attorney to recover any fee. In a minority of states, most notably Texas, an attorney who is discharged even for good cause may recover a fee — in these jurisdictions, only when the attorney’s actions rise to the level of outright misconduct (usually a serious ethics violation), will the attorney be denied any fee.

What is “Good Cause” for Firing a Lawyer?

Anything that constitutes a serious ethics violation would easily qualify as “good cause” to fire your lawyer. For example, if your lawyer has a conflict of interest (e.g., he’s representing both the passenger and driver of a car in an automobile accident case against a third party, and it becomes apparent that the passenger should also sue the driver of the vehicle in which he was riding), if your lawyer asks you to lie (or even commit perjury) about your claim, or if your lawyer advises you to defraud your medical lienholders (e.g., lie to your health insurer about what injuries are related to the case), these would most likely be sufficient grounds to deny the fired lawyer a fee in every jurisdiction.

Unfortunately (for purposes of simplifying this article — fortunately for real world clients), clients rarely fire their lawyers for offenses so egregious. More often, a perceived lack of diligence by the lawyer (not moving your case forward as quickly as possible), a difference of opinion over the value of the case, or a lack of communication by the lawyer with the client for a significant amount of time will be the “good cause” for the lawyer’s discharge cited by the client. Whether these actions, or inactions, rise to the level of good cause sufficient to completely deny a fired lawyer any fee (in the majority of jurisdictions which don’t require misconduct) will need to be determined on a case-by-case basis. This uncertainty about whether you will owe your old lawyer a fee is the main reason I encourage people to try to work it out with their lawyers before firing them. Neither you nor your former lawyer want to have to litigate the fee issue. It is a lot of extra work which neither of you need, which is why these disputes are usually compromised in all but the most contentious cases — this ironically creates the lack of caselaw which could help to remove the uncertainty for future lawyers and clients.

How is Quantum Meruit Determined?

If you owe the fired attorney a fee based on quantum meruit, get ready for more uncertainty. Most judges will apply a “totality of the circumstances” standard in determining what a fair fee is under quantum meruit. It could be a fee based on the average hourly rate of lawyers with similar skill and experience as the fired lawyer and the time expended by the fired lawyer. States are divided as to whether this amount is capped by the contingency fee percentage in the original contract, so in theory, some states will allow a discharged lawyer to recover more under quantum meruit than he would have received if he took the originally contracted percentage of the ultimate recovery — yikes!

Quantum meruit could be also be based on the percentage of the work done by the old lawyer relative to the amount done by a subsequent lawyer. Of course, this presumes that you’re in a jurisdiction which will limit the total fees for both the fired lawyer and the subsequent lawyer to the percentage stated in the contract signed by the original lawyer. Not all do. In theory, some will allow both the new lawyer and the fired lawyer to recover their full contingency fee percentages, or let the fired lawyer recover an amount in quantum meruit which is roughly equivalent, leaving the client with a meager percentage of the total recovery.

Just know that if it’s likely that the fired lawyer will be entitled to quantum meruit fees, the court which decides such fees has an enormous amount of discretion in determining what amount is “fair”. You and your former lawyer will really be at the judge’s mercy.

Protect Yourself When Hiring a New Lawyer

Aside from doing a better job screening your new lawyer than you did your last, you must be absolutely clear with the new lawyer how his fee will be determined in light of the fact that you may owe your old lawyer a fee. The best deal for you would be if your new lawyer agrees to limit his fees to the percentage stated in the contract with the initial lawyer, minus the fees that you must pay to the old lawyer. With this type of arrangement, you are no worse off (at least as far as fees are concerned) than you were with the original lawyer.

Not all lawyers will agree to this, especially if the old lawyer may have a large fee claim (or a claim to a full fee, as a lawyer in a state like Texas could). It would be in your best interests to discuss the possible fee arrangements with a new lawyer before terminating your old one so that you can weigh the pros and cons of firing the old lawyer more effectively.

It may be that you could come to some kind of compromise with the new lawyer, whereby your new lawyer agrees to limit his fees to the lesser of (1) the original contracted percentage, minus your old lawyer’s fees and (2) a fixed percentage of the total value of the case, such as 20%. This way, your new lawyer would be guaranteed at least a 20% fee, and you would be guaranteed that you would pay no more than the old attorney’s fee + 20%. It’s not an ideal arrangement for either side (and may not be allowed in jurisdictions which limit the total fee for all lawyers to the amount of the original contract), but agreements under which neither party is happy tend to be the most fair to both sides.

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When to Fire Your Lawyer — Better Sooner Than Later

If you have made the decision to fire your lawyer, it is better to act upon it sooner rather than later. Allowing the soon-to-be-fired lawyer to continue to work on your case will only drive up the amount of fees to which he may be entitled after you fire him. Of course, I still recommend trying to work it out with him first, and checking with possible new lawyers to see what fee arrangement you face before telling your lawyer he’s fired. However, you need to pursue these two steps quickly and diligently once you start leaning towards firing your lawyer.

In other words, don’t be hasty in making the decision to fire your lawyer, but once that decision has been made, don’t wait to pull the trigger.

Liens the Fired Lawyer May Assert

There are two liens which are available to a discharged lawyer who believes that he is entitled to a fee: the charging lien and the retaining lien. In most jurisdictions, a charging lien can only be asserted if the lawyer filed a lawsuit on your behalf (if you fired him pre-suit, this lien won’t apply). The charging lien is usually asserted by your former lawyer by filing a Notice of Charging Lien with the court in the active lawsuit. The purpose of the Notice is to inform all of the parties to the lawsuit that the lawyer is claiming a right to some part of any settlement or judgment you may obtain.

If you settle or win your case, and the defendant pays you without honoring the charging lien, he may be liable to the former attorney for the full fee he ignored. For this reason, most defendants will want an assurance that the charging lien is dealt with (either paid or invalidated) before you get paid. They may pay the amount in dispute into the court (this is called interpleader), which will then disburse the funds (to either you, your lawyer, or divided among both) when the fee dispute is resolved. In some cases, the defendant may accept an agreement by your current attorney to hold the disputed funds in his trust account until the fee issue is resolved. Either way, the charging lien is an effective way for your former lawyer to ensure that you don’t spend the amount you may owe him before he can pursue his claim. This lien only applies to proceeds from the lawsuit. The lawyer cannot file a charging lien against any of your other assets.

A retaining lien allows your former lawyer to hold onto your case file (and refuse to give it to you or your new lawyer) unless and until an agreement is reached regarding his fees, and in many cases, costs. Even in cases where you may not owe your old lawyer a fee, you may still owe him his costs which must be either paid or guaranteed before he must release your file. Depending on the jurisdiction and the language of your fee contract, you may not have to pay his costs before receiving your file, if the costs, like his fees were part of the contingency (e.g. “no costs owed unless you win”). You will still likely need to pay them if you make a recovery.

Even if your former lawyer doesn’t assert any liens, he may still pursue his fee against you by way of a lawsuit. So if you know that your old lawyer expects a fee, don’t feel safe in ignoring his claim just because he didn’t assert any liens.

So Should I Fire My Lawyer or Not?

Only you can decide if your lawyer’s conduct warrants having to deal with the potential fee issues which will arise should you fire him. If this article gave you pause as to your decision to fire your lawyer, good. Fee disputes are a messy area of law, and the rules for resolving them vary widely from state to state. Even in states where the law is clear, issues regarding the amount of quantum meruit compensation to be awarded remain largely a matter for judges to decide on a case-by-case basis.

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Before giving your lawyer the “Donald Trump” treatment, talk to a few prospective new lawyers to see how they feel about your odds of having to pay your old lawyer a fee, and what kind of deal you can expect from them if you will owe the old lawyer a fee. Try to nail down as many moving parts in this uncertain area of law before firing your lawyer.

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99 Responses to Can I Fire My Lawyer? Yes, But You May Still Have to Pay Him

  1. VFoster says:

    Your article for prepping a case on one’s own says to get a copy of the defendant’s insurance and know the policy limits. My lawyer said that he does not, and probably won’t, know the policy limits of the defendant in my case. That isn’t information he would normally be given, he said. Why would he say that, given your article’s advice to the contrary? Thnx for any 411

    • fl_litig8r says:

      My article doesn’t contradict your lawyer. I specifically said that not all states require insurers to give third party claimants policy limit information, but that many (meaning “not all”) will give it to make settlement easier. It sounds like you are in one of those states that doesn’t require insurers to give out policy limit information. I’m sure your lawyer would love to know the policy limits, but he’s either already asked and been denied (and there’s nothing he can do about it) or he knows from experience that the particular insurer you’re dealing with won’t voluntarily give out this information.

      It makes it harder to settle a case if you don’t know the policy limits, but many lawyers in states such as yours deal with this every day. You just treat the case as if the policy has no limits and demand what you think is full value. Eventually, to avoid a trial, if the insurer knows that its insured doesn’t have sufficient policy limits, it may volunteer this information to try to work a settlement. Otherwise, it risks having an excess judgment entered against its insured, which could make it liable for a bad faith lawsuit.

  2. VFoster says:

    Thanks! Although you do not want to be my lawyer, you’re the best! Great website.

  3. nakeia goodman says:

    Thank you for your articles they are very interesting to read , I do have a question if my settlement case take to long should i be able to fire my lawyer? Also, how long do a personal injury case take?

    • fl_litig8r says:

      If you fire your lawyer just because you feel your case is taking too long, that probably wouldn’t be good cause except in the most extreme cases — so you’d still have to pay him. Most lawsuit delays aren’t the fault of the plaintiff’s lawyer, anyway, so your case may not move any faster with a new lawyer. See the article I linked to above about how long personal injury cases take — off course each case is unique and it will vary depending on how backlogged your local courts are.

      • David Nolen says:

        In reference to the time limit of a personal injury vehicle accident where my wife recieved a major neck injury. It has actually has been two years and seven months and my wife has not recieved a dime. I understand one of the causes was the doctor visits to verify the injury. The case is a complicated case involving three different Insureance companys with one being an independent company. My question is that I found out a settlement had been presented by my wife attorney and one of the Insureance is willing to pay a third of the amount and requesting the other two insurance company’s to pay a third each. Does it seem with in the next few months this would be settled or can it take longer?

        • fl_litig8r says:

          While it’s encouraging to see that at least one of the three insurers is willing to settle for the amount requested if the other two contribute a pro rata share, it really doesn’t give any indication as to what the other two insurers are thinking. If they feel that the one amenable to settlement has the most exposure (assuming it’s not clear that they are all equally liable), they may not consider a three-way split to be a good deal. At least it gives you some indication that the total amount you requested is reasonable.

  4. jorn winther says:

    I was hit by a car. medical expenses $20.000 and loss of work app $50.000. however I am 80 and the doctors cannot be certain that my injuries results from the accident they believe they are,
    Apparently you are suppose to feel like shit when you are 80
    The Insurance company is Geigo. My lawyer wants to deposed an investor friend of mine and the party is willing to be deposed but knowing Geigo they will also likely asked them to supply their finances and I don’t want to compromised them because I need them in the future and for sure they don’t want to do that anyway and they have to travel across the country.
    I told my lawyer that and here is part of his answer:

    MY LAWYER WRITES: DO NOT WANT TO TAKE LESS THAN PLICHY LIMITS ($100.000)
    if you told me tomorrow to take their crap offerI would refuse and I would want you to get another attorney or represent yourself to take that offer.

    Can I fired him after these e-mail statements without paying him? and I like to settle for 1/2 that amount can I represent myself?

    • fl_litig8r says:

      Your lawyer cannot refuse to follow your instructions regarding settlement. He can withdraw instead of conveying the settlement offer, but if he does so due to not wanting to follow your settlement instructions, you would not have to pay him (and he’d be stupid, opting to take no money over less than what he thinks the case is worth). If he does withdraw, you can certainly try to settle on your own. If the defendant won’t settle for what you want, you can always hire another lawyer. Though, if you’re really willing to settle for a lot less than the case is worth, the defendant would probably jump on it.

      Just out of curiosity, why do you think that your friends would have to disclose their own financial information? How is that relevant to your damages? Also, by law your friends don’t need to travel such a long distance to have their depositions taken. The defense would have to go to them (or do the deposition by phone or video conference).

      I think your lawyer may just have been a bit hyperbolic in trying to tell you that he thinks your case is worth a lot more than you are willing to take. He crossed the line in how he said it, but he was probably just trying to be as emphatic as possible that you’re selling your case short. Have you expressed your reasons to him for wanting to take so little? He may be able to convince you that your concerns are unfounded.

  5. Dina Marie says:

    I fired my personal injury lawyer. My accident occurred in December of 2010. My former lawyer told me I could get my file the following day. They refused to hand over my file the following day and refused to be fired. This was September 6, 2012. On the 10th I hand delivered and certified my letter of termination, but they still refused me my file. They said I could get it that Wednesday. When I finally did receive it and had gone over the file I noticed that a suit was not filed with the court, there was no docket # as of September 5, 2012. In their interoffice communication file dated the 7th it was stated that they had to try and file a claim so they can get a lien due to me hiring another lawyer. I never told them I was going to hire another lawyer, I’m actually going to settle with insurance company on my own. Also the medical reports and information for my case only dated up to 2011 after the accident fiirst happened and more recent stuff they obtained after the date of September 6, 2012. Are they not entitled only for services rendered (lawyer hourly fee, copying of paperwork fee?) or are they correct in trying to put a lien of 1/3 of the first offer that was offered before they were fired.

    • fl_litig8r says:

      As I said in the article, when a lawyer is entitled to a fee and how much will vary from state to state, and often from case to case within each state. You haven’t even told me what state you’re in, so I don’t have much to go on.

      If your lawyer didn’t file a lawsuit, he won’t be able to assert a charging lien (which explains his interoffice memo from the 7th). Without a charging lien, it will take a good amount of work for your lawyer to try to get paid (if you just settle on your own, he’d probably have to sue you for breach of contract), so depending on the value of your case, he may not even try. Also, there’s no guarantee that he would succeed in such a claim, if it comes down to whether you had “good cause” to terminate him.

      • DinaMarie says:

        I apologize. I am in the state of New Jersey. I terminated for multiple reason, but when going over the file I noticed the lawyer’s office was notified of the other persons policy limit of $250,000.00 but the lawyer told my the policy limit was only $100,000.00. According to the constingency contract they referred me to paragraph 10 of our contract which is in regards to hiring another lawyer. I never told them I was hiring another lawyer. I haven’t hired another lawyer. I also confirmed this morning with the county’s Superior Court’s Civil Case Management that a motion was never filed on my behalf (no docket # available).

        • fl_litig8r says:

          If a lawsuit wasn’t filed, then he shouldn’t be able to assert a charging lien. His notifying you of incorrect policy limits may be enough to establish good cause for his termination, but that may be something he’d be willing to litigate if you settle your case.

  6. Brandon says:

    I was in an auto accident on September 9, 2011. I rear ended a man that pulled out about 20 feet in front of me and I had no room to avoid him and no time to stop. Fault has been determined as the other mans by all parties and witnesses. I fired my lawyer last week for, what I was told by a few separate lawyers I had been speaking to about taking my case, good cause. My question is do I have good enough cause to have his lien dismissed? here is some background. I hired him on January 11, 2012 and he rushed me into signing paperwork and didn’t really make much conversation about my case until I signed the paperwork. Since then, he has only seen me one other time other than last week when I made an appointment to see him. I have made upwards of 40 phone calls to his office to try to get information and to make an appointment to see him about it. He has clerks that work in his office that told me they are “in charge of my case” and since this is the first time I have had to deal with an auto case, I didn’t see any reason to not believe them. Almost every call I made to his office, I was either told they would call me back, I didn’t receive an answer, or they would give me a 30 second update on things. I made many visits to his office when I would get no answer on the phone to try to schedule an appointment or get information, and I would get left in the waiting room with no recognition from any of his employees nor himself for 15-30 minutes and I would just get a 30 second update telling me nothing new. I had my last doctors appointment on May 1, 2012 and when I went to his office last week to fire him, he told me that he was still waiting on one document, even though he had requested the documents on August 7th, 2012 and received them on August 27, 2012. I went into his office on September 26, 2012 to fire him (Great way to spend my 22nd birthday), and he gave me a “full update” on how things have been progressing and how close he was waiting on one narrative to submit my FIRST demand. After that “explanation,” I sat down across from him and tried to tell him that I was unsatisfied with how things have progressed and how upset I was with the lack of communication. I told him that I had seen other lawyers about possibly taking over my case and had considered going another direction, and he interrupted me and began yelling at me. I tried to continue my thought by trying to tell him that with the progress he has shown me, and if he could give me a time frame on when the first demand would be sent out (whether it was a month or 5 years, just something to tell me he has an idea), but he just seemed interested in yelling at me. He started with calling me stupid, naive, ignorant, and telling me how little I know about the law. He continued to make excuses about how he has other cases in Houston (which is a 4 hour drive from where I live and his office is located) that takes up most of his time, how he has fired many clerks, and that one of his clerks that had ordered my last set of medical documents was in the hospital and he didn’t know where she put them, and couldn’t get a hold of her. He then began telling my how lucky I was to have him as a lawyer, and that he was the best in the county, state and possibly even the country. He then told me that he “worked extremely fast” and “I did something in 8 months when it should have taken 6 (his exact words)”I could barely get a word in during this half hour session, and towards the end when he finally got quiet, I told him that if he would have let me finish my first thought, he would have understood that he wasn’t fired providing he could give me a time frame, and guarantee more communication. After I told him that, he began to yell that “You (me) have already made up your f***ing mind.” I told him that I hadn’t fired him yet, and he continued with “Then just F***ing say it, I’m F***ing fired!” After that display of how he treats his clients, I set the letter I had typed up explaining myself on his desk, calmly told him he was fired, and left. He had a chance to redeem himself when I walked into his office, but with his behavior towards me, he didn’t deserve a second chance. So to mention my question again, do I have a justified reason to fire him including what happened before and after I had left his office? In addition, I apologize for the language. I blurred it out myself so that I wouldn’t sound like a child, and to prevent any backlash over it. I was using his exact words when anything is quoted, and most of what he said was just him repeating himself calling me stupid and everything else he could think of. He did use a lot of foul language while I sat there calmly during the whole ordeal. Thank you for any input on this.

    • Brandon says:

      Another thing I forgot to add to this is that since his clerks told me they were in charge of my case, I spoke to them instead of him. They told me, on several occasions, that my settlement demand would be finished “This week” and “sent out next week.” This happened over the course of August for the entire month and going into September. Basically, his office made promises they couldn’t keep, adding to my displeasure with his services.

      • fl_litig8r says:

        It’s not that uncommon to have paralegals field client questions that don’t require the lawyer’s expertise, such as scheduling issues. Unfortunately, it’s also not that uncommon for demand letters to get delayed over and over, either due to records not being received or requested in a timely manner. While this behavior of stalling the client with promises that “it will go out next week” is bad, it’s so common — and there are always excuses for it — that I doubt that this would be considered serious misconduct or an ethics violation.

    • fl_litig8r says:

      Lack of communication about your case can be good cause to fire a lawyer, but it’s one of those gray areas that will need to be determined on a case-by-case basis. As I mentioned in the article, though, Texas is one of those states where good cause is probably not enough to eliminate fee entitlement — you likely need outright misconduct, such as an ethics violation. In severe cases, failure to keep a client reasonably informed about his case can be an ethics violation — but again, there is no bright line test for saying when this has occurred.

      While he may not have moved your case forward as quickly as possible, it doesn’t sound like he neglected it so much that this would be an ethics violation (his file will bear this out better).

      As to his rude behavior and language, these are usually not enough to result in an ethics violation except in the more extreme cases. Bars tend to distinguish between ethics and professionalism. While his conversation with you would violate most lawyers’ definitions of “professionalism”, professionalism is just an aspirational goal set by the bar. In other words, it’s highly encouraged, but violation of these goals will not result in any punishment.

      If you were in a state other than Texas, I’d say your chances were better of having his fee entitlement extinguished. However, from what I’ve read about Texas, good cause alone will not accomplish this. Whether your lawyer engaged in misconduct isn’t something that’s clear-cut in your case. You may have to just wait until the case is resolved and fight him over his fee entitlement.

  7. Rosa says:

    I lived next door to two attorneys (husband and wife) for fifteen years. We were neighbors and friends. He would give me free legal advice and I would help him fix things, or lend him tools, etc. We got along great! He has also written letters for me (pro bono) but I have never actually signed a contract with him.
    My mother passed away on Christmas eve, 2011. I was originally the Executor of her Will and Trustee. My mom had a lot of money in stocks. When I told her that I really didn’t know much about investing, stocks and bonds, etc…we discussed making my daughter the Trustee, since she and her husband DO know a lot more about it. We trusted my daughter! Bad move!! My daughter let all that power go to her head and she has treated my siblings and I horribly since then. (The will and trust were drawn up in New Mexico, and my daughter is in California.) We all decided to get together and take her off as Trustee, and to make one of my brothers the successor trustee. We all signed Removal of Trustee and Appointment of Successor Trustee forms. She is now fighting us, and has hired my old neighbor to defend her. (Is this a conflict of interest on his part?) She knows that none of us has the money to hire an attorney, plus she is using money from the sale of my mom’s house, to pay her attorney. They gave us small partial payments of our inheritance, but also made us sign something saying that we are accepting this partial distribution by ratifying the action of the Trustee “my daughter’s name”. This was after we had served her with the Removal papers, so it felt like they were sort of blackmailing us into saying that she was again the Trustee, just to get some of our money.
    Now, when we ask how much money is left from the sale of the house, we got a list from the attorney of what was spent, including a $7000 fee for his services, PLUS he has on the list $5000 for Legal Fees Anticipated! Can he actually hold onto our money to pay himself with?

    • fl_litig8r says:

      I’m sorry, but the fee question needs to be asked of an Estates & Trusts attorney. I just don’t know enough about that area of the law to tell you how fees are handled in this situation. You may want to ask a JustAnswer lawyer this (it’s not free, but it should cost you less than $50.00).

      As to the potential conflict of interest, if you consulted with your neighbor regarding the estate or trust issue (even if you didn’t pay him), there is a good chance that there is a conflict which would require him to withdraw. A lawyer can be conflicted out of a case even if he just gave an initial free consultation to another party with an adverse interest. This happens a lot in high-power divorce cases, where spouses will rush to consult with (but not hire) several of the best lawyers in town just to prevent those lawyers from representing the other spouse. For there to be a conflict, you must have consulted with this lawyer about the same or a “substantially similar” matter. If you just received advice on unrelated matters, there is no conflict.

  8. lostbunny says:

    My case is a mess, the attorney at first wrote in email he did not have problem with given me my casefile now after I fired him, he files a withdraw and the case is in federal court for personal injury. I have a discovery deadline pending. I am in a sham cause all attorneys want the case file from the old attorney before they take the case. They tell me the case is messed up. I wish that I could pull back from the case being in federal court so that I can get a fair trial.

  9. Bernice H. Smith says:

    I live in North Carolina and on February 11, 2013 a bifurcated trial was held at the County Courthouse in reference to my wrongful death Lawsuit. The Lawsuit was brought about when my husband, in the year of 2010 was hit by a person operating a mower tractor mowing the shoulder of the road. The mower pulled out into my husband’s lane of traffic which caused the motorcycle to crash and caused my husband to be ejected from his motorcycle, going airborne about 72 feet before landing on asphalt.
    My husband was transported by Emergency Vehicle to the hospital on the day of accident where he was in critical condition; he was transferred to a rest home facility after spending a month and a half at the county hospital and after one week at the rest home he was rushed back to the hospital due to pneumonia and kidney failure. After about a month and a half, my husband was admitted to a specialty hospital where he passed away about 3 weeks later after being admitted there due to injuries he sustained in the accident.
    As the plaintiff, I lost the verdict because of what the court said was “Contributory Negligence” on behalf of my husband. It’s not that I’m expecting to re-try the case; but my husband never stood a chance to avoid that accident; which is why I want to appeal.
    I want to look into “Last Clear Chance” among other issues listed below. “Last Clear Chance” is information that was shared with me yet not from an appeal attorney. Also after the verdict, I met with my attorney a few days later and the meeting went as follows:
    In meeting with my attorney in reference to my wish to appeal the verdict rendered, which was on February 14, 2013; I told my attorney that I had some concerns as to whether the judge improperly allow evidence that should not have been allowed or any other issues that may have been prejudice towards my case such as: (1) did the judge thoroughly explain to the jurors or caution them on knowing who the decedent was verses the defendant to the point that they would not get one confused with the other, (2) why one doctors’ video testimony was condensed and the other doctors’ video testimony wasn’t; (3) why was he (my attorney) and the defense attorney allowed to role play the doctor from the video that was condensed; (4) the role playing consisted of my attorney acting as the attorney asking the doctor (my late husband’s doctor) questions with the defense attorney answering the questions as if he was my husband’s doctor; and it was the defense attorney who took the stand and acted out the part of my husband’s doctor answering questions asked by my attorney, which I feel was extremely prejudice and of course extremely confusing for the jurors and me.
    On another note the defense attorney never objected while (he) the defense attorney role played my husband’s doctor while he was on the witness stand; Why? Because the defense attorney had it all under control since my husband’s doctor’s video testimony was allowed to be condensed, and due to the fact that the defense attorney was no longer at that time on defense because he was acting out my husband’s doctor’s part and on the witness stand.
    This role playing by both attorneys was also extremely prejudiced in my case; which in my opinion positively did cause the verdict to be rendered in favor of the defendant.
    My attorney said that the video was condensed to save time and that the doctor was going through too many medical terms and procedures that were not necessarily beneficial to my case.
    I asked my attorney; how would that affect the juror’s decision if they (the jurors) didn’t hear all that the doctor had to say. I also suggested to my attorney that the doctor whose video testimony was allowed, was just as long as the doctor’s video which was allowed to be condensed and that the video that was allowed gave a lot of information that was not true yet very damaging to my case; and that video was allowed to run through its’ entirety.
    My attorney suggested that I not go for an appeal because of extreme costs and possibly incurring cost on behalf of the defense team. I told him (and the head of the firm who sat in the meeting with us) that I appreciated the information and their direction for me; but that I wanted to move to an appeal for my own satisfaction for justice, fairness.
    They told me that they would not be able to handle the appeal for me (not that I would want them to) but that they would refer me to appellate attorney that they use for their clients.
    I received a call quickly from my attorney advising me of 2 appellate attorneys to choose from. I’m pretty sure that I won’t use either one because I just don’t feel comfortable doing so. I do however want to make sure that I don’t miss the deadline to complete the paperwork to start the appeal.
    At this time I am looking and hoping to find an appeal lawyer to assist me in this matter; however for some reason I feel that this may be an appeal that no attorney wants to tackle. Is this common?
    What do think about my concerns?
    Thanks.

    • fl_litig8r says:

      As to finding an appellate lawyer, there are far fewer lawyers who handle appeals of cases tried by other attorneys than there are general PI lawyers, so you may want to consider calling the lawyers to whom your original lawyer referred you.

      As to the video and roleplaying issues, neither of these are uncommon at trial. Videos of testimony are often edited to remove things that are objectionable, unnecessary or confusing. Longer is not always better. With respect to the roleplay, that may have been to act out a portion of the transcript that contained objections which the judge already upheld. It may have been that they couldn’t play that portion of the video without introducing the objectionable material (e.g., if only part of a question or answer ran afoul, but they still wanted the jury to hear the other parts), so it was easier to just read the non-objectionable portions. The defense lawyer wouldn’t object to pre-recorded testimony because he already raised his objections with the judge prior to trial. Anything they read, he either didn’t object to or the judge already ruled was admissible. As I stated, they likely read part of the transcript to get around portions to which he had already successfully objected.

      As to your other possible grounds for appeal, you can only appeal issues which you initially raised in the trial court. If you did not object to the jury instructions or portions of the doctor’s transcript which were excluded (and proffer those into evidence outside the presence of the jury) you won’t be able to use them as grounds for appeal.

      From what you’ve described, it really doesn’t sound to me like your lawyers did anything wrong or that would constitute malpractice. I doubt that you have grounds for appeal except possibly on technical grounds which aren’t clear from your description. You were really just a victim of North Carolina’s outdated contributory negligence system, which precludes any recovery by a plaintiff if they were even 1% at fault. The vast majority of states employ comparative negligence, which merely reduces the plaintiff’s damages by his percentage of fault. The blame for the bad outcome of your case really falls on your state legislature, which should change the law to switch to a comparative negligence system. That doesn’t help you now, but perhaps a strongly worded letter to your state representatives about this could help sway them to change this for future plaintiffs.

  10. robin says:

    hi. i’m in california. I had a traffic accident that was caused (admittedly) by the other party. i hired a PI lawyer who has not done anything with my case (one month) and the legal secretary told me that no paper work has been sent to the insurance company or courts yet. now i’d like to just settle with the insurance company on my own. do i owe the lawyer anything… can i just terminate my retainer agreement with him before i settle or will i still owe him part of my settlement…?

    • fl_litig8r says:

      While some states have a grace period in which you can get out of a fee contract and not owe the lawyer anything, I doubt that any give you a month or more. If you fire your lawyer now, you’ll probably still owe some kind of fee. I think you’re being a bit hasty, though, as a month barely gives your lawyer enough time to get your medical records, which he’d need to make a demand to the insurance company. I’m not even sure if you’re at maximum medical improvement now, so a quick settlement may not be a good idea at all. I suggest you read this article, which explains why things take so long in a PI case. It may give you some insight into what your lawyer is doing and why he hasn’t tried to settle your case yet.

      I would really suggest giving this more time before firing your lawyer. For most cases it is a really bad idea to rush into a settlement so soon, as you may not be able to fully calculate your damages.

      • robin says:

        hi there… thank you so much for your response. the only reason i’m thinking of settling is because the insurance policy limit (according to the claims adjustor of the at-fault party) is $15,000 (i assume she is telling me the truth about the limit??). after they pay off my employer for lost wages of an agreed upon amount of $5,000, that leaves $10,000 for my medical bills and pain & suffering. her low offer to me was $7500 + the $5,000 to my employer. i know i can counter and probably get the $7500 to $10,000. if i use the attorney, i understand the $15k limit is just that… the limit, so how can he get me any more than that if the at-fault’s insurance limit is maxed out? i’m not interested in suing civilly and affecting the at-fault’s pocketbook…. just the insurance. that’s why i was thinking i didn’t need the attorney. thoughts….?? and if i do still have to pay him if i fire him, would it be the 33% of my $15,000, 33% of the $10,000 or the couple hundred dollars he will say he spent on a phone call and a few documents he sent me??

        • fl_litig8r says:

          First, I’m a bit confused as to why your employer would get the $5,000.00 for lost wages. Did they pay you that amount through a short-term disability policy while you were unable to work?

          As to how much you’d owe your lawyer (either the agreed-upon percentage or quantum meruit), that will vary by state, as I discuss in the article. I’d suggest talking to the lawyer first and seeing if he’ll let you off the hook, given the low policy limits and the fact that you could probably recover the same on your own. You’ll still need to pay his costs so he doesn’t lose money from representing you — it may help your chances if you offer this up front.

  11. robin says:

    hi…. my employer (it was an on-duty traffic accident – i’m a police officer) has a lien for $17,000 for the salary they gave me while being off work. they negotiated with the insurance and agreed to taking $5000 rather than $17,000. so the remainder is only $10,000 to hit the insurance cap of $15,000. i paid my own medical bills as i don’t like work insurance IOD doctors who want you back to work 2 days after injury unless you’re decapitated….and they don’t do anything except dispense drugs… so i owe some money to my own doctor as well as wanting a bit for pain & suffering. if the insurance is already offering me $7500 + $5,000 to my work…. we are only off $2500 per policy limit and i think i can get that without my lawyer. hopefully my lawyer will be nice and let me off the hook.

    • fl_litig8r says:

      I hope he does. It really does sound like a case where they will pay the limits even without a lawyer. On the plus side, at least you got a good break on your employer’s lien.

      • robin says:

        hi there…. just thought i’d let you know that i followed your advice and spoke with my lawyer giving him all the details of the information i’ve acquired and without even asking, he is insistent on not taking any money from me and even sending a letter on my behalf to demand the maximum the insurance is able to pay…. i’m so happy and my faith in humanity has been restored! thank you so much for your help and advice. it’s truly appreciated!!! take care.

  12. Vickie says:

    I am in Arkansas. In my daughters custody suit for my granddaughter I helped her get a lawyer. We agreed to add money after an initial $5,000 deposit, when those funds got down to $2,000. The fees added up so fast that as soon as I sent $4,000 more the fees had went up almost $14,000 more. Then I started getting communication that he could not work on the case until the bill was paid plus $2,000 more. I told him that I thought that they were not going to do anything without the money being in the fund. No real response. So told him I could not afford to pay him and he stepped down. Now I and my daughter are getting letters from a law firm to collect. My current lawyer said no way any judge would give him the extra fees because the court usually only gives around $500. The lawyer never went to court only stretched it out. It was settled in a manner of days once he was out of the picture. What should I do? This will at the least ruin my credit.

    • fl_litig8r says:

      If you haven’t already, you should get the itemized billing statements from the original lawyer, which should account for all of the time that he supposedly spent on your case. Have your new lawyer look at it to see what he thinks. It sounds like the original lawyer is claiming fees for a lot of time he probably didn’t spend on your daughter’s case. Once you confirm this with the new lawyer, you can submit a bar complaint against the original lawyer for fraudulent/unconscionable billing — a serious offense. If that doesn’t get him to call off the dogs, you may need to involve another lawyer to defend against his claim.

  13. titi says:

    Hi dear, I was in a car accident seven years a go and I haven’t got any resolve yet. My worry is if my lawyer has change of his heart over me because he keeps telling me my case is very complicated and mess, he never advice me what to do or say all he does is keep sending me to different doctors almost so far I have seen over sixty doctors. He also keep telling me we might loos the case what would you suggest I should do change him or higher additional lawyer as personal lawyer?

    • fl_litig8r says:

      When your lawyer starts pointing out all the problems with your case, it’s usually to lower your expectations as to a settlement amount. I don’t know if he has any offers that he’s preparing you to hear, but it does sound like he thinks your case has some problems that will affect his ability to settle it. If you’re really concerned, I’d set up a face-to-face appointment with him for like a half an hour just so you can discuss the settlement possibilities and whether he still wants to handle your case. Don’t be too quick to leave him, as you may find that you’re unable to find another lawyer willing to take you on so far into the matter. If you don’t get satisfactory answers to your concerns after meeting with him in person (or if he refuses to meet with you), then I’d start calling other lawyers to see if anyone would be willing to take your case at this point. It would be better to know that another lawyer will take your case before firing this lawyer — if it even comes to that.

  14. Mary Etta says:

    The money hungry hog(Attorney) kick me to the curb. Its all about the money. All the paper work Is pre-fab. What comes around go’s around!

  15. Mary Etta says:

    What happen to my extreamly Important post???

    • fl_litig8r says:

      All posts here go to moderation, which means that only the original poster can see it until it’s approved, and only from the same computer used to post it (it tells who you are by using a cookie). If the cookie did not properly set or got erased, or if you use a different computer, you won’t be able to see a pending post until it has been approved. I still see it, though. I approved your last post, so you should see it now.

  16. Mary Etta says:

    I knew to much time was being wasted on my case. It was only going around and around In circles. and the huge hourly wages kept coming. money that I don’t have. I figure the firm was only enjoying the games that were being played. I should have never hired the firm. when you are told what the retainer fee would be. and then find out It more a little later. If you need more questions answered don’t hestitate to ask.

  17. jeweleah says:

    question about firing a lawyer. we have a judgement against a former renter and signed a contingency agreement with a lawyer that they would pursue payment on the judgement. once money is received, the lawyer gets 33% and we get the remainder. this agreement was signed three years ago, and we’ve not seen any movement with our case. last week my husband called the lawyer’s office and they told us that they finally located the persons that the judgement is against, but that they are in a different state therefore the lawyer will have to transfer the case to someone else, and the old lawyer will require a $250 retainer to transfer the case to the new lawyer to pursue, but our case still remains with the current lawyer. are we in a situation where we can fire the current lawyer for not making any progress in three years until now when the lawyer tells us that they will have to transfer the case to someone else, and can we fire without paying any fees?

    • fl_litig8r says:

      I’d have to know specifics of what your lawyer was doing the past 3 years before even speculating as to whether you could fire him and avoid a fee. I’m not a collections lawyer, so I don’t have much experience in how long it typically takes to track down a judgment debtor, especially if that person has left the state or is hiding. 3 years certainly seems like a long time, though.

      I’m not quite clear on the proposed transfer of the case. I can understand the need to retain local counsel in the new state to domesticate and enforce your judgment. I’m just not sure if your current lawyer is proposing that he will still be in charge of the case with the other lawyer acting only as local counsel (to file documents and such due to him being licensed in that state) or whether he is referring the case to the new lawyer and just receiving a portion of the 33% as a referral fee. It sounds like the former.

      Is the $250 really a retainer for the new lawyer’s fees, or is it more like a cost for filing fees to domesticate the judgment in the new state? I’d be very leery about paying the new lawyer a fee (but not a cost) in addition to the 33% you’re paying your current lawyer. Normally, if an additional lawyer is involved in a case and that lawyer isn’t performing a substantially different service than your original lawyer, the lawyers will divide the originally agreed upon fee between them. So, if one personal injury lawyer involves another personal injury lawyer from a different firm in his case, the fee to the client doesn’t increase — they just divide the percentage between them. However, if a personal injury lawyer needs to involve a probate lawyer to prepare estate documents in a wrongful death case, usually the client must pay the probate lawyer separately (though sometimes the PI lawyer will pay this fee up front and be repaid by the client when the case settles).

      Without really knowing what your lawyer has done so far, I can’t recommend firing him or not. If it seems like the matter is moving forward now, it may be more expedient to just keep him on rather than risk having to pay him a fee if you fire him without sufficient cause. Just monitor the progress more closely in the coming weeks to ensure that the case is now moving forward.

  18. RWims says:

    fl_litig8r:
    I have one last question. My husband and I are currently seeking legal counsel, however, the landlord’s insurance company has requested we sign a medical release for the past 2 – 3 years for the mold claim. Are we required to do this? Additionally, in the state of Florida, are you required to before any settlement is negotiated? Thanks in advance.

    • fl_litig8r says:

      You are not legally obligated to provide a third party’s liability insurer with a release. If this was your own insurer, it would likely void your coverage if you refused — but this is not the case with someone else’s insurer. While they will likely make you giving them a release a condition of them negotiating with you, I wouldn’t provide them with any medical releases before you hire a lawyer. If you weren’t planning to hire a lawyer, I’d say you have little choice if you want to try to settle. Because you are, I say hold off on discussing the matter with the insurer any further.

      • RWims says:

        fl_litig8r:
        In Florida, are you allowed to file suit in a county different from where your personal injury occurred?

        • fl_litig8r says:

          Look to Florida’s venue statute, Fla.Stat. §47.011:

          47.011 Where actions may be begun.— Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.

          So, yes, you can also file in the county where the defendant resides. For more detailed venue rules (multiple defendants, corporate defendants, etc.), click on the link above and read the statutes in this chapter (they’re all short and on the same page). Technically, you can file anywhere in the state, but the defendant will have the right to transfer the case to a more appropriate venue (it’s likely that a judge will convert a motion to dismiss based on improper venue into one for change of venue, especially if the statute of limitations has run since the original filing), and if you filed in an improper venue, you’ll have to pay a second filing fee.

          A case can also be transferred from even a proper venue over issues of convenience or inability to obtain a fair jury in the originally chosen venue. For example, if the accident happened in Alachua County (where you reside) and you file in Dade County (where the defendant resides), the defendant could ask that the case be transferred to Alachua because all of your treating doctors and witnesses to the accident are located in Alachua County. While you might ask “Why would a defendant ever want to transfer a case out of his home venue to mine?”, it could be that Dade County juries typically award larger damages than Alachua County juries (yes, typical jury awards can vary widely from county to county).

          • RWims says:

            Ok, thank you. We are interviewing attorneys and I have two questions. I have prepared everything at this point; we need an attorney to represent our legal interests. The attorney would not need to request ANYTHING else. I submitted the claim information to the insurance adjuster and prepared everything the attorney would need to represent us; medical records, insurance lien info, witnesses and photos. Can we negotiate fee based representation? Alachua County? Does cookies show that? :)

          • fl_litig8r says:

            You can try, but don’t be surprised if the lawyers stick to the standard rates. The way they’ll see it is that if you could have settled it on your own, you would have. Maybe they’d cut the fee if it settles based on the initial demand (which you could ask, assuming they really don’t need to do more work to prepare it), but after that they’ll probably make you pay the same as everyone else. I don’t know any Florida PI lawyers who compete based on fee. We all charge the maximum the ethics rules allow: 33 1/3% before suit is filed, and 40% after that. You might have better luck pitching this to one of the solo practitioners, but I doubt any larger firm would budge (and I’m not suggesting that the solos aren’t as good, just that they call their own shots without having to answer to anyone else).

            As far as me telling where people are from, I can see their IP addresses and usually their internet provider domain (in your case ga.at.cox.net, which is Cox in Gainesville, FL) from which I can generally tell where they’re posting from. That’s not from cookies, though — even sites without cookies can see this. Most of the time I don’t bother looking it up and just ask the person if I want to know.

  19. Teddy says:

    I have read a lot of your site. Thank you for helping many. Maybe you can offer some advice for my case.

    I was assaulted in late 2007. I had injuries, some I did not realize for some time. I had broken my collarbone 22 months earlier (2 places) it was not surgically reunited. I had a pseudo-arthrosis. But the assault disturbed the entire area and I could not use my arm normally. My tailbone was badly bruised, my teeth damaged (my head hit the floor hard). I drive a big truck (Freightliner) and it was not until I hit the road again that I realized my knees also were injured (probably from when I fought the person who assaulted me.) To make a long story short, I ended up going to Costa Rica for surgery (a plate). I have no insurance, never needed it. I could afford the medical care in Costa Rica. I filed criminal charges, but the prosecutor sucked. He never brought out the fact that I was injured and with me being the only witness, the assailant got off (he also hired an arrogant, intimidating lawyer.)

    So I went in search of a lawyer. I never knew it would e so difficult. Most want easier cases. I finally got one who was willing to take the case on contingency. I sent him copies of all of my medical records (almost all from Costa Rica – it was rare for me to EVER see a doctor otherwise as I WAS also an athlete – horseback rider, runner: mostly Ride N Tie) so I have few records inside the USA. Well, I had NO CLUE what the interrogatory was about, got minimal advice, but managed to get it done, albeit a bit late. Then, almost 6 months later was the deposition (of me by the opposing lawyer). I met my lawyer in person for the first time the morning of the deposition. We drove the 2 hours to the courthouse and he never discussed what was to happen. He just preached his religion to me. I was annoyed, but later aghast at the questions posed that I was not prepared for. The opposing attorney later said that my testimony was a “gift”… A few months later was the deposition of the person who assaulted me. My lawyer said nothing, refuted nothing and presented nothing. (I have transcripts of both depositions.) The trail was set and I was so upset at my lawyer that I fired him. While trying to find another attorney I learned that my medical records would not be accepted in court without certification. Heck, how would I know! My former attorney HAD my medical records for about 2 years! So I hired a lawyer in Costa Rica to get the records from there certified. I have most of them now. But now I cannot find an interested attorney for a legal malpractice suit. FYI, the person who assaulted me is now dead and left a $2,000,000 estate. In the meantime I found a really nice lawyer who consulted with the assaulter’s lawyer and they arranged for a “slip & fall” settlement of $30,00 (the max under the policy) of which that lawyer kept $10,000 (not unjustified.) But my medical bills and the permanence & expense of my injuries are at least $100,000. I am now disabled and am told I need knee replacement. Many of my teeth were cracked and I had implants to replace them. My tailbone is still not right (the clinic I first went to after the assault refused to x-ray my coccyx) and I had that x-ray taken in Costa Rica. I had since had arthroscopic surgery when the synvisc injections ceased to do much good. Now I am told I need knee replacements in both knees. Unaffordable for me even at half the price in Costa Rica. Plus, I will not be able to drive until I recover (6+ months). If I do not drive, I do not make money and cannot eat, much less pay any further medical bills.

    I feel totally screwed by the system. I am tired of calling the bar association for referrals or looking online. I am female, 64 years old with my savings gone and no Social Security benefits. I have nightmares almost every night: no longer about the assault, but from the fear of dying and being basically homeless (as I LIVE on the road and have no permanent home.) No money means no food, no fuel either. So I continue to drive (which hurts my knees further) to get SOME income. I fear I will be absolutely homeless.

    But I did discover that the lawyer I fired does have malpractice insurance.

    • fl_litig8r says:

      Let’s start with why you had such a hard time finding a PI lawyer to take your battery case. Generally, PI lawyers don’t like cases that involve criminal conduct, as there won’t be any insurance coverage available for such claims. This means that the defendant will pay out of pocket for his own defense and for the damages. If he’s poor, there’s no point in suing, because you’ll never collect. If he’s wealthy, as in your case, and denies that he committed the act, the case is pretty much guaranteed to require a trial, followed by the hassle of trying to collect from the defendant personally, assuming you win. Generally, wealthy people have been advised as to how to protect their assets from recovery, so collecting is not as easy as you may think, even if the person is super rich. Add to this the fact that he was acquitted in a criminal trial, and you begin to see how PI lawyers may not see your case as being cost effective.

      While you were able to finally find a lawyer to take your case, it doesn’t sound like he was a very good lawyer (which might explain why he took your case when no one else would — beggars can’t be choosers). Not meeting with you prior to your deposition to prepare you is inexcusable. It also sounds like he wasn’t doing what he should have to prepare your case for trial.

      That being said, I’m not optimistic about you suing him for malpractice. First, there are very few legal malpractice lawyers out there, so you start off with that problem. Second, the value of a legal malpractice case depends on the value of the underlying case — in your case, you already had trouble finding a lawyer to take the underlying case, which doesn’t bode well for finding a malpractice lawyer whose case depends on that underlying case. A legal malpractice lawyer essentially needs to prove two cases at once. He must prove that the lawyer was negligent, and that this negligence damaged your underlying case, in addition to proving the underlying case itself, to show what the value would have been had malpractice not been committed. I can’t say how strong your underlying case was from either a liability or causation standpoint, but it doesn’t sound particularly easy.

      More concerning, however, is the settlement of the matter as a slip & fall. As an insurer was involved (you mentioned policy limits), you could not have recovered if you claimed that the injuries were intentionally inflicted, as would be the case in a battery lawsuit. If you pursue this malpractice case, I would not be surprised if the defense attorney doesn’t raise the possibility that you (and the attorneys involved in the settlement) committed fraud by claiming that an intentional injury was negligent in order to have the liability insurer pay out. So, unless you have a good argument to make that two separate events occurred, (1) a negligent fall and (2) a battery, you may want to think long and hard before trying to pursue a malpractice claim based on a battery when you settled that lawsuit with an insurer as a negligence case.

      • Teddy says:

        The “settlement agreement” with the insurance company reads a such:

        1. The Parties further acknowledge and declare that this Agreement contains the entire Agreement between them and that there are no other agreements, promises, terms, conditions or understandings, and no representations or inducements leading to the execution of this Agreement, express or implied, other than those set forth herein and that no oral statement or prior written matter extrinsic to this Agreement shall have any force or effect.
        2. The Parties hereby mutually release and forever discharge each other from any and all actions, suits, debts, claims, demands and obligations whatsoever, both in law and in equity, which either of them has ever had, now has or may hereafter have against the other, upon or by reason of any matter, cause or thing up to the date of this Agreement, including but not limited to claims that were or could have been asserted in the Civil Action, it being the intention of the parties that henceforth there shall exist as between them only such rights and obligations as specifically set forth in this Agreement.

        Nowhere in the settlement agreement was made any mention of a “slip and fall”

        More from the settlement agreement:

        WHEREAS, the Civil Action involved a claim by ******** for personal injuries allegedly sustained as a result of a physical interaction between the Parties; and
        WHEREAS, ********** received several payments from the Victim Compensation and Assistance Division, a division of the Office of the Attorney General for the Commonwealth of Massachusetts; and
        WHEREAS, ********** has been told by that office that it has not asserted and does not intend to assert any lien against any amount paid in settlement of this action; and
        WHEREAS, the parties have decided to resolve all claims between them permanently, without any admission of liability;

        The word “Negligence” also appears NOWHERE in this settlement document.

        • fl_litig8r says:

          Well, from the language used, it at least seems pretty clear that the insurer knew about the battery — due to the reference to the Victim Compensation and Assistance Division. This would make a potential fraud claim unlikely, given their apparent awareness of you pressing charges against the insured. So, even though neither battery nor negligence are referenced in the agreement, it looks as though the insurer could not claim that it was deceived into settling a battery case as negligence. This makes me more comfortable about that settlement.

  20. jon says:

    I have a criminal court case, pre-trial set for 8/20 and trial set for 8/27. But i wish to let my paid attorney go, over 7 months of his continuing we are going to trial. I have had 2 meeting with him for a total of 30 mins, 15 when i first hired him, and 15 when i begged his assistant last week. His assistant asked me if i want him to with-draw from my case, and i wrote her back a pretty rude email. Im looking at 4.5 years if i lose at trial. I dont want to go in there blind not knowing any thing. When i meet with him last he was barley looking at my police report and saying, well lets take it to trial and see what the jury says. I dont even know about what. But what could i possibly say to the judge to give me time to get another attorney. I have been talking with a few and they want the case, but want me to ask the judge to start again with a status conference. What if anything and how could i ask the judge and for what reasons to start again. PLEASE HELP.

    • fl_litig8r says:

      As I am not a criminal lawyer, I’m really not the best person to give you advice on what grounds to claim for a continuance in a criminal case. Aside from the obvious fact that you don’t believe that your current lawyer was providing diligent representation and that you barely met with him in over 7 months, you should state specifically that this request is not merely for purposes of delay, but out of a legitimate concern over the effectiveness of your counsel. I’d include that you have spoken with other attorneys who have expressed an interest in representing you, but for understandable reasons will only agree to do so if they are granted adequate time to prepare a competent defense.

      It would be ideal if one of these lawyers helped you out with the grounds for the motion, as they would know far better than I would any additional grounds you should raise that would resonate with a criminal law judge. If they are unwilling to do this, it may be worth your while to spend $30-40 to get a answer from an actual criminal lawyer over at JustAnswer.

      • jon says:

        I want to say thank you very much for your time. And I believe that you are doig a great service without question. THANK YOU!

  21. Teddy says:

    Well, this is NOT a criminal case. I was assaulted and filed criminal charges (in a Podunk town and got a newbie prosecutor who never even brought out my injuries in court.) I was appalled and disgusted and, needless to say almost panicky! The lawyer I hired, AFTER the criminal charges were dismissed, to sue the defendant for my medical bills, SAT on my records for almost 2 years an NEVER told me they needed to be certified. Then comes the deposition which he never prepared me for that went badly. (I read your section on what should happen at a deposition just lately…) and at the defendants deposition he said next to nothing! A few days later the defendant DIED! He left 2 MILLION dollars to his best friend! So now I do NOT have a criminal case, but a legal malpractice case!

    • fl_litig8r says:

      It was a civil case arising from criminal conduct. I never claimed otherwise. Battery is both a civil and criminal term. I just wrote an article about the difficulty involved in bringing a legal malpractice case. It’s more complicated than you think. Not to defend a bad lawyer, but you need to be able to prove how your deposition would have gone differently (better) had you been prepared and how your lawyer’s failure to thoroughly question the defendant prevented you from proving your case. If your assertion is that you were relying on the defendant’s own testimony to win, that’s not a great argument. I would think that his death would have been beneficial to your case, as he’s no longer around around to testify against you. It would be your word against no one’s (assuming no third party witnesses) — so why did this damage your case? I’m still not convinced that you have a strong malpractice case, but that’s just my opinion. By all means, consult with several attorneys to see if they will take it on. For your sake, I hope you’re right and I’m wrong.

      • Teddy says:

        I have found a website called Halt.org. I have contacted them. I have no ideas if they can help. The person who assaulted me was my brother. There is no way my brother would have told the truth. The only witness was my mother who had dementia and is also now dead. He was (IMO – with no way to determine now that he is dead) a sociopath. I do have statements as well medical records from doctors as to the probable cause. The glitch is that since they are almost all from outside the USA. I doubt any would come to the USA for a trial (and I have no money to pay them.) I spent almost $1000 to hire an attorney in the country where I had the medical work done just to obtain all the documents and have them certified through the ministry of foreign affairs.

        I know this will be tough. I am 64 years old, but was 58 at the time of the assault. I WAS an athlete: a runner and horseback rider. Now I can barely climb stairs. I make my living driving a tractor-trailer (self-employed), which only makes my knees worse. Now I have hip problems from compensation. My rig needs constant maintenance which is tough to afford.

        My quality of life has gone downhill tremendously. I have nightmares fearing I will become homeless and destitute or worse, die. I have no home as I live on the road, my rig is not worth enough to sell to even rent or buy a home (and then what would I do to support myself?)

        I HAD a nice home I sold 8 years ago. I had to spend the proceeds I had for medical bills. It is awful to be in such a position. My business and my life were wonderful (not making me rich, but creating a more than adequate lifestyle.) I have lost it all due to this assault and the ensuing injuries.

        Sorry to rant, but I am constantly writing journals..helps to “get it out”…So what do you know about “HALT?” if anything? I am not a quitter, and the rest my life depends on it.

        My brother lied in his deposition and the lawyer I fired never confronted him (I was not there either.)

  22. Edie says:

    Hired a lawyer 2 1/2 yrs ago for claim against Insurance Company for water damage to my home, contingency contract. They never return phone calls, my case has been passed along from one atty to another. Interrogatorries from opposing atty dated January were not given to me until April. The standard answer is we are working on it because the insurance company denied the claim. I’ve asked why they denied it and they never respond. I have left messages with my insurance company but they will not speak to me because I have a lawyer. I want to fire them and proceed with a private adjuster, I feel they have not lived up to their part of the agreement, I live in Florida and would like your opinion…Thanks

    • fl_litig8r says:

      Before you fire them, I’d see if they are willing to just let you go. This would avoid any potential claim for attorney’s fees (though it may still be reasonable for them to be reimbursed for costs, as these may be items that you would have needed to purchase to pursue your claim anyway). If they aren’t particularly enthusiastic about your case (which seems to be the case from the foot-dragging you mention) they may not have any problem just allowing you to take your case elsewhere. It may help to conduct the meeting where you discuss this in person. I’d suggest approaching this with a neutral attitude, just calmly explaining to them that you are unhappy with the progress, the communication and the delays (mention the late rogs specifically). Don’t be openly hostile or put them too much on the defensive — you’re just trying to get them to say yes to you leaving to avoid a possible future conflict over fees. Sacrifice the temporary pleasure of venting your spleen on them in favor of the long term benefit to your case an amicable separation will bring. If they refuse to let you go, then feel free to fire them and vent away.

  23. Aris says:

    Hello,
    My lawyer agreed to a 30% fee for my case and after speaking with the paralegal she advised I’d be charged 35%. The contingency fee contract states the following:
    “An additional 5% of any recovery after notice of appeal is filed or post-judgement relief or action is required for recovery on the judgement.”

    I am not sure what that even means. Is my lawyer pulling my chain and trying to charge me the extra 5% thinking I don’t remember our agreement or are they charging me the extra 5% because of the above mentioned statement? Can you elaborate on what that statement actually means please? I’d like to know more about it before I approach my lawyer on the matter. Thanks in advance!

    • fl_litig8r says:

      The “extra 5%” provision in the event of an appeal or action for post-judgment relief is pretty common language in contingency fee agreements, so your lawyer isn’t pulling a fast one by having such a clause in his contract. These types of situations are fairly uncommon in most personal injury cases and they involve a good deal of extra work — so the extra 5% is usually earned when they do arise.

      Appeals typically take two forms: (1) a post-judgment appeal or (2) an interlocutory appeal. A post-judgment appeal happens after the matter has been completely resolved by the court, either via a trial or summary judgment. It can be based on several supposed errors committed by the judge or jury — whether certain evidence should have been admissible, whether a juror should have been stricken, whether the jury awarded damages which clearly exceed the amount supported by the evidence, etc. It can be filed by either side, regardless of who “won” at trial — for example, a plaintiff who receives a judgment against the defendant can still appeal if she feels that the judge wrongly excluded evidence which would have resulted in a larger verdict. The extra 5% fee provision will be triggered if your lawyer filed an appeal or whether he opposed an appeal filed by the defense.

      An interlocutory appeal is an appeal that occurs during the litigation, but before a judgment is entered. These are pretty rare, as most appeals must wait until the case is completely resolved before they are “ripe”. One common exception is where the judge orders that a party must turn over evidence which the party claims is privileged. This is subject to an immediate interlocutory appeal because once the evidence is turned over, the privilege is ruined and it can’t be “un-turned over” later. If such an appeal occurred in your case, regardless of who filed it, again, the extra 5% provision would be triggered.

      The part of the contract provision about “post-judgment relief” usually refers to your lawyer having to force the defendant to pay a judgment. Usually when there is an insurer involved (with policy limits that exceed the judgment) this won’t be necessary, as they will just pay. If there is no insurer involved, or one with inadequate limits, your lawyer could try to force the individual defendant to pay. This will often involve discovery about the defendant’s assets and getting your sheriff to seize certain assets and auction them off to pay the judgment. Again, this is a lot of extra work not encountered in typical cases, so lawyers charge extra for it.

      So, if your case involved any of the above, the extra 5% is warranted. You should simply ask your lawyer’s office why the fee is 35% instead of 30% — no need to be confrontational about it. Hopefully, they will have a simple explanation for you.

      One other possibility I can think of is that the paralegal screwed up in telling you the fee was 35%, and that perhaps she just lumped in the attorney’s costs with his fee when figuring out the percentage your lawyer was taking. Costs are usually recovered in addition to fees. So, if you recovered $10,000.00, your lawyer could take $3,500.00 of that if he has a 30% fee and $500.00 in costs. In such a situation, the paralegal may have just said that he was taking 35% even though the fee portion of that is still 30%.

      The only way to find out what’s really going on is to ask your lawyer’s office. I assume they have a very good reason for charging the 35%, as trying to collect a fee which exceeds the contract amount would be an ethics violation, and it’s just so easy to get caught doing it that I would expect any lawyer with half a brain to not even try.

  24. Mike says:

    Hi,

    I paid a retainer of $5k for a defamation case against John Doe in Texas. My lawyer assured me that a fee would be in the range of 5k in most of cases similar to mine where they issue subpoena to the webmasters to remove defamation content from their website. So far I have gone over my retainer amount and the subpoenas have not been issued due to the way courts in TX work (too slow). However I am not sure what further costs I am anticipating? How should I communicate to my lawyer that I cannot afford charges of $400 an hour for additional hours required. There has to be a cap or a proposal from lawyer which states next course of action along with charges? Please advise what should I do rather than receiving invoice every month end with some work done to reflect charges of $400 an hour

    • fl_litig8r says:

      Well, first things first. A subpoena will only get you information from the web hosting company — presumably the identity of the website owner. It won’t get the defaming material removed from the site. If the website host is not in Texas, it could be a big pain in the ass having an out-of-state subpoena issued and enforced, which is usually done by requesting “letters rogatory” to be issued to the out-of-state court. Now, whether this takes 12 hours or more of attorney time to accomplish in Texas state court, I can’t say. If your lawyer used up your $5,000 retainer without really getting you any closer to having the material removed, then I’d say his estimate was way off and you should have a talk with him about how much this is going to wind up really costing you. Perhaps some kind of flat fee arrangement can be reached — but the goals would need to be well-defined. He can’t guarantee success in having the material removed. The bottom line is you just need to be honest with your lawyer about how much you’re willing to spend to accomplish your goal, and he needs to be honest with you about whether that amount is reasonable.

      If you haven’t already, it may be worth your time to contact the website’s hosting company directly. Many have their own “terms of service” for webmasters, which would presumably include not posting defamatory materials on hosted websites. Some even have online complaint forms where you can complain to them directly about a particular site (I’ve used this myself to file a DMCA complaint against a site that was stealing my content). You may be able to get the webmaster to take the material down just by having his hosting company let him know that someone is asking his site to be shut down. Of course, if the hosting company does shut him down, he can move his site elsewhere rather easily, creating a whack-a-mole situation — it really depends on how much he’s willing to be inconvenienced to keep that material online. If he’s very determined, then you’re going to need to spend a lot of money (at $400/hour, yikes!) to sue him directly to have the defamatory material removed.

  25. mar lopez says:

    I got bit by a dog to the penis . I hired a lawyer and the defendant wants me to settle out of court without my lawyer . he asked me thru a friend to pick a dollar amount and make it big. my question is how much can my case be worth . it was a laceration cut to the top of my penis no stitches but I did not heal the same and I have a fear of all animals . I believe my urine stream when I urinate does not come out the same . my penis has a scar . my dr bills aren’t much . they are under 1000 . what can my attorney do to me if settle with his help .

    • fl_litig8r says:

      If you signed a contract with your lawyer, there’s no point trying to settle without him as you’ll still owe him a fee even if you negotiate the settlement on your own. I’d let your lawyer handle the negotiations with the defendant. It sounds like your injuries could be pretty bad, so I wouldn’t suggest you trying to figure out a settlement amount on your own. Your lawyer has experience calculating future medical expenses and appropriate pain and suffering damages, and he has more knowledge of what jurors award in your area than you do. If you’re thinking of firing your lawyer just to avoid paying his fee, that probably won’t work and I wouldn’t give you advice on how to settle on your own under such circumstances. If you don’t want to use your own lawyer, you are truly on your own.

  26. Cheryl Tovar says:

    Hi I fired my attorney and they are ask a interest in the claim. Is my insurance suppose to send my pip check to them or me. Since they aren’t no longer my attorney or does it depend on what the contact states. I’m a residence of Texas

    • fl_litig8r says:

      It depends on several things. Was this claim something your attorney contested, or is the PIP insurer just paying as it should because you made a claim? Are attorney’s fees part of this check, in addition to claim money? I would expect that if it was something that your attorney actually represented you on that they would send the check to him to be endorsed by both of you. If you hired a new attorney, the insurer might be willing to send the check to him, but I doubt that they would just send it to the claimant when there is a dispute as to whether the old attorney has an interest in it. Attorneys are bound by ethics rules that govern how they are to handle client funds that are in dispute as to fees, so the insurer is better protected against one party merely taking all of the money in dispute if it sends the check to a lawyer.

  27. W Ross says:

    Question:

    I am in California. I used a lawyer for a Dependency case in which I was not the respondent (simply to ensure that I had representation as a party to the proceeding). I did ask the lawyer to attend several hearings to make the Court aware that my former spouse (against whom the Dependency case had been opened) continued to behave inappropriately.

    Lawyer gave some questionable legal advice that poorly aligned with my situation, both legally and financially. Advised me to “walk on” a matter at considerable expense – the judge admonished the lawyer, telling the lawyer “you know very well that requests to modify Orders in this way are not done on a ‘walk on’ basis”. The judge then apologized to me for my incovenience.

    I questioned the lawyer’s judgment in a later conversation. Evidently, the lawyer found my tone flippant, and the lawyer began yelling at me. At this point, I hung-up and got a new lawyer, and asked the new lawyer to handle orchestrating the transition of all relevant information and materials. A few weeks later, I completed the formal Substitution of Attorney form.

    The lawyer who I had replaced sent me an email asking for the form, and said that the Court wanted her to appear to file the form – a visit for which I would be charged. I told the lawyer that I would file the form with the Court myself – and that I wanted no further action taken. The lawyer then told me “fine – I will send you my final bill”.

    When I received the final bill, I was dumbfounded. I expected a refund against what was my second retainer… the lawyer was asserting charges ($7k) OVER my second retainer, for which the lawyer was asking payment.

    I emailed the lawyer stating that I would pay nothing more than I had already paid: that such charges could only have been incurred as a result of the lawyer’s inefficiency, poorly contrived legal strategy, or both. In effect, I had run past my retainer as a result of a hearing that the judge said never should have happened… plus whatever else the lawyer was doing to incur charges. Moreover, I was never advised that I was at the end of my second retainer… or even close to it. It seemed to me incredible that incompetence + inefficiency = entitlement to additional income.

    I am now nearly two years removed from the removal of this lawyer. The underlying case itself is closed. And the lawyer is now trying to find me for purposes of collecting the “balance” previously asserted.

    What are my options? I assume the lawyer waited to try and collect fees so that the malpractice statute would run out (the limitations on lawyer malpractice and fee collectibility should really be the same duration – the former is valuable and appropriate leverage against a garbage fee imposition)… how helpful is the CA Bar likely to be? What other sources of potential leverage do I have in terms of making this lawyer go away? If the lawyer gets to me, am I better off dealing with arbitration or simply avoiding the process entirely and letting the lawyer get a judgment (which is only as good as the ability to enforce it) and let the lawyer try to collect it? The dollars in controversy here are within the small claims cap in CA… any way I can go through that channel to address fees allegedly owed (as opposed to trying to collect a debt)?

    I want out of this with no more money spent, and to make this lawyer go away… without employing another one to make it happen. Seems like it should be possible – would appreciate your thoughts about how best to do it.

    Thank you.

    • fl_litig8r says:

      If she’s using a third party collection agency to pursue the claim, you could just tell them to stop contacting you and they must under the Fair Debt Collection Practices Act (note this doesn’t apply to when the debtor herself is making the contact). They can still ruin your credit rating or sue you even if they can’t contact you for collection purposes, though. If she sues you for breach of contract, then you’d had to defend against her claim by claiming that the work being billed was either not done or was unreasonable given the task for which she was hired. Unless you represent yourself, that will cost you money. Suing her for liable if she ruins your credit (assuming you can prove that you don’t owe the debt claimed) is another possibility, but one which doesn’t hold much promise if you don’t hire a lawyer to do it.

      If you’re avoiding being served with process (if you know she’s trying to sue you), that can delay things for a while, but eventually she could just serve you by publication and possibly get a default judgment against you (which opens you up to wage garnishment and property seizure). It would be better to defend this claim head on than allow it to go to a default judgment and then have to try to get that set aside.

      It could be worthwhile to report her to the state bar, as they do have jurisdiction over unconscionable attorney billing practices. If she clearly did busywork or billed you for work no reasonable attorney would have done, that may get her off your back.

      • W Ross says:

        Appreciate your insight. Frustrating that I either have to pay an attorney for ineffective representation at exaggerated expense, or hire another lawyer to get rid of the first one… or have my credit impaired.

        How effective is it to candidly review a lawyer utilizing social media? If I offer my opinion and personal experience on, say, avvo… and any other online forums that allow clients to rate the quality of representation provided by an attorney, how much leverage is that likely to create?

        I think my recourse here is through the State Bar and social media… believe I can both file a complaint and pursue mediation / arbitration through the California Bar, while making sure this lawyer “sees her name in lights” any time she googles her name. I am fairly confident that I can stay on the right side of any libel allegations by framing my comments as my own opinions regarding my personal experience with this lawyer (“I feel that I received extremely poor representation and legal guidance from this attorney” vs. making any accusatory statements”). I guess we will find out. A big pain in the rear-end, but I am going to undertake the grand experiment of trying to separate a lawyer from $$ that they (wrongly) feel entitled to without hiring another one to do it.

        Fingers crossed, and thank you again for the insight you provide. I am certain that you have helped some people in need through your efforts on this site. You should be commended for that.

        WR

        • fl_litig8r says:

          I’m not sure how effective a social media campaign will be. I really don’t know how many people look at lawyer reviews on the Internet, or how many of those would take a bad review seriously. I’m sure that any lawyer with bad reviews could pop over to a site like Fiverr and buy fake positive reviews to drown out any legitimate bad one, though that would require that the lawyer knew of such services. I think you’ll get more mileage from a bar complaint.

          It sounds like you already know how to craft your planned reviews to steer clear of a libel claim (though one may be brought anyway just to get back at you), so whether your campaign will have any effect really depends on a lot of unknown factors.

  28. Dave Dombrowski says:

    Hi,
    Is this the area where I can ask a legal question?
    Regards

    • fl_litig8r says:

      Sure. Before you ask, though, please take a minute to look over my site guide, which contains a list of all articles divided by topic. You may find an article which already answers your question, or an article whose topic is more relevant to your question, where your comment would fit in better. If you don’t see any article related to your question, you can ask your question in the comments of any article (preferably one that doesn’t already have a ton of comments).

  29. Nisha says:

    Hi, I have a question for you.Hope you will give some suggestions.

    My husband hired a attorney for his divorce with his first wife. He had earlier a attorney he did nothing in his favor regarding property settlement. so he hired one of the top attorneys( so called) of the Chicago for the case. His first wife is housewife and she wanted a mall of 7 units and mansion leaving a two small commercial building and a old house to him. He runs grocery store in one of the the buildings for his living. The area where he has business is very life threatening neighborhood. He had couple of incidents that he just escaped the shot. So as a settlement he asked to sell his business and the seven units mall and go for 50: 50 settlement so he could have some money for the new business for his living but nothing was favoring. So he hired this so called chicagos one of the top attorneys to defend his case. He told attorney about the life risk at his business and what he wants for settlement. The attorney said he would make mall sell and gets 50:50 of the property. His bill was for a month 10,000 that he paid then he said he had come up with old offer he did not do nothing. Now bill is 21,000 and made a petition at court to pay attorney fees. The judgment went attorney favor. Now my husband has no money to pay attorney fees and the judge was the same for his divorce case and for this case as well.

    Now what he supposed to do? the attorney did nothing and have no money to pay his bill. He just misled me saying I would do this that but did nothing

    • fl_litig8r says:

      What do the attorney’s billing records show? He should be providing your husband with statements (usually monthly or at least at the time the bill is sent) that break down his time spent on the case in 10th of an hour increments, describing what he was doing during that time. You can’t really judge whether he’s doing any work by merely looking at the outcome. A lawyer can spend years working on a case, take it to trial and lose (getting his client “nothing”), but this doesn’t mean he did nothing. Some times even very good lawyers lose, or fail to reach the desired outcome.

      If this lawyer filed motions and negotiated with the other side to attempt to get your husband what he wanted, but wasn’t able to succeed, it doesn’t mean he doesn’t deserve to be paid for his time. As an aside, I find it hard to believe that a lawyer would ever promise that he could get the client what the client wants — any lawyer who isn’t an idiot knows that there are things that are outside your control, so the best you can do is promise to do your best.

      With all that being said, the only thing you can do now is scrutinize the lawyer’s billing records to see what he did. Do the records seem plausible and were the things he did reasonable? If so, then I don’t see any way to avoid paying him. If not, then this may be an issue to take up with the state bar (though I’d probably consult with another attorney to review the bill first before doing that, as getting the bar involved is a drastic step that will ensure that your current lawyer, who may be very good, will withdraw from your husband’s case, leaving him to have to find another lawyer to take his case — one that will bill for the time it take him to get up to speed).

  30. maria says:

    My friend is a physical therapist, one day his bosses told him that the police came and he supposedly had two people reported him in sexual misconduct while doing a therapy and that they knew it was not in their office but maybe from the jobs he did on his own time. They told him that he could no longer work until he was cleared. A police never contacted him. He got frustrated and decided to search for an attorney. The attorney without any informatino from anybody made him sign a contract with a $12,000 fee. All the information he has received from the attorney from a week ago says that he looked into the police station and the police officer was on vacation and would come back today. As of today there is no restraining order and no one has served him with a court order or anything. Since there is no case, can he get out of contract or fire the attorney without paying him the full amount? this is in California

    • fl_litig8r says:

      First, I think you may be jumping to conclusions that this matter has been dropped. Investigations prior to any charges being filed may take a long time, so the fact that your friend hasn’t yet been interviewed or charged or subjected to a restraining order doesn’t necessarily mean that the matter is closed.

      As far as the $12,000 retainer, in California, a lawyer may contract for a non-refundable retainer, but generally such provisions are only enforceable if (1) the agreement is in writing and specifies that the fee is non-refundable, (2) the fee is paid only to secure the availability of the attorney (and is not an advance payment on legal services to be provided, as most retainers are) and (3) the amount of the fee is not unconscionable. In your friend’s case, I would find it hard to believe that a $12,000 fee would be considered a reasonable amount to merely secure the availability of the lawyer in question, so my best guess would be that even if your friend signed a contract stating that this amount was a non-refundable retainer, the lawyer would owe him a refund for the majority of it if your friend terminated the lawyer’s services now.

      Under the California bar’s Rules of Professional Conduct, Rule 3-700(D)(2), a lawyer who is terminated shall “Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter.”

      The amount of your friend’s advance payment makes it very unlikely that the bar would consider this fee a “true retainer” as stated in this rule. Such a large fee must have been contemplated to be used to pay for the attorney’s services, and not just to secure his availability. You can find another article discussing several hypothetical scenarios for non-refundable fees under the California bar’s ethics rules here.

      Therefore, I feel that your friend should be able to get most of his money back if he terminates the lawyer now. If the lawyer refuses, and claims that it was a non-refundable retainer, your friend should contact the state bar. Your friend would still be liable for any work the attorney performed at an agreed-upon hourly rate.

  31. Robin FL says:

    Hello – No written contract or retainer – right to refund? My divorce & custody case is in Florida. My father paid a retainer to an attorney to file my divorce. I never signed a retainer agreement or contract. My ex filed for divorce first with a firecracker lawyer. My father passed away 4 days after the ex filed. Obviously I felt obligated to use this lawyer my father had already paid and during that time I was totally torn over the death of my Dad. The lawyer my dad gave money to was soft-spoken and non-confrontational – she was totally unprepared for the first hearing (which I expressed concerns and questions left unanswered prior) in which Ms. Firecracker completely blindsided me with all kinds of false allegations. I immediately retained another attorney. Due to my lawyer being unprepared, and the fact that she communicated more with my mother about my divorce instead if me, even after I asked her not to, it cost me thousands more to repair and file motions for what should have never happened in the first hearing to begin with. I have asked her to return the retainer and she says she will not. Next steps?

    • fl_litig8r says:

      In Florida, only contingency fee contracts need to be in writing. R. Regulating Fla. Bar 4-1.5(f)(2). Hourly or flat fee contracts do not. However, if an attorney and client have agreed to a non-refundable retainer, that fact must be confirmed in writing. “A fee for legal services that is nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee.” R. Regulating Fla. Bar 4-1.5(e). Note that this rule still does not require a signed written contract — merely that the non-refundable fee be confirmed in writing. In fact, in the comments at the bottom of the rule, it specifically states:

      In order to avoid misunderstandings concerning the nature of legal fees, written documentation is required when any aspect of the fee is nonrefundable. A written contract provides a method to resolve misunderstandings and to protect the lawyer in the event of continued misunderstanding. Rule 4-1.5 (e) does not require the client to sign a written document memorializing the terms of the fee. A letter from the lawyer to the client setting forth the basis or rate of the fee and the intent of the parties in regard to the nonrefundable nature of the fee is sufficient to meet the requirements of this rule.

      Long story short — if this lawyer is claiming that she doesn’t owe a refund of the retainer because it is non-refundable, that better have been confirmed in writing or she’s violating the Florida Bar’s Ethics Rules. If she’s claiming that she doesn’t owe a refund because she earned the full amount of the retainer by working a certain number of hours at a certain hourly rate, which exhausted the full amount of the retainer, that’s more problematic. If that’s the case, then you’d have to challenge the general reasonableness of the fee charged (as well as whether she performed the work claimed) pursuant to the multiple factors listed in R. Regulating Fla. Bar 4-1.5(b). Either way, this matter can be raised via a bar complaint, and you will likely only be entitled to a partial refund of the retainer, subtracting the amount that can reasonably be attributed to the number of hours she can prove she performed at a reasonable hourly rate. You don’t get a full refund just because the contract wasn’t in writing, if that’s what you thought.

  32. Robin FL says:

    Thank you for your response! Any non-refundable verbal “agreement” was made with my deceased father. When I requested a copy of a contract, she told me she could not provide me that information since it was made with my parents, not me, and that I would need to ask my mother for any further information or questions. Who did she represent? My parents or me? Can my parents sign agreements on my behalf? Time is money and I believe that she is owed something for her time, but I was also told that she would return the retainer to hire other counsel. Had I known that she had no intentions of returning any portion of the retainer, I would have made other financial arrangements. Thank you for your time and guidance.

    • fl_litig8r says:

      You ask what appear to be simple questions, but the answers are more complicated than you think. As an initial matter, there is the issue of who gets the refund when a third party pays a retainer for someone else’s attorney’s fees. Florida ethics opinions appear silent on this issue, but when I looked at other jurisdictions, they all appear to agree that the refund goes to the payor, not the client, when payment was made directly by the third party to the attorney. When payment was made through the client, as either a gift or loan from a third party, the refund goes to the client unless it is specifically agreed upon that the refund goes to the payor. So, in your case, it would seem that any refund owed would have to be paid to your father’s estate.

      On to your question. . . In my opinion, a third party who pays someone’s attorney’s fees is not automatically a client of the lawyer (unless they are a client for a different matter). The mere fact that they may have entered into a contract with the lawyer doesn’t establish an attorney-client relationship any more than a lawyer’s contract with his commercial landlord makes the landlord a client. R. Regulating Fla. Bar 4-1.8(f)(1) requires that a client give “informed consent” to a third party payor agreement. While the comment at the bottom of this rule states that “Sometimes, it will be sufficient for the lawyer to obtain the client’s informed consent regarding the fact of the payment and the identity of the third-party payer,” this implies that sometimes it will not be enough to merely know that someone else is paying to satisfy the “informed consent” requirement. While this minimal “informed consent” approach might be appropriate for cases such as when an insurer is paying all attorney’s fees, without limit, I would think this would not be enough when a third party pays a limited retainer that may run out. How is a client to know when she may have to start paying her own fees if she is not kept apprised of how much of her retainer has been used?

      Also, while R. Regulating Fla. Bar 4-1.8(f) allows the payment of fees by a third party, it also requires that the lawyer preserve the client’s confidentiality, meaning that any billing statements given to the third party for work performed will generally be vague and not particularly informative as to exactly what work was done unless the client specifically agrees to allow the third party access to what would otherwise be information protected under the attorney-client privilege (which would often result in the attorney-client privilege being waived entirely as to those records, for all parties, due to the third party being given this information). I’m assuming you didn’t expressly waive your confidentiality so that your father could get informative billing records about your case. Only the client herself will be entitled to see detailed billing records in most cases, which is another reason I believe the rules would require that she be shown them.

      R. Regulating Fla. Bar 4-1.4 requires that a lawyer “keep the client reasonably informed about the status of the matter” and “promptly comply with reasonable requests for information”. R. Regulating Fla. Bar 4-1.5(e) requires that “When the lawyer has not regularly represented the client, the basis or rate of the fee and costs shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.” The Florida Supreme Court, in Florida Bar v. Vining, found that an attorney violated these ethics rules when he failed to provide his client “with an accounting of the time and charges accumulated and the basis or rate of his fees”.

      From these rules and interpretations, I believe that an attorney who is paid by a third party still has an ethical obligation to keep her client reasonably informed as to time spent and fees incurred on that client’s behalf. While this may not be needed in cases where the third party is an insurer who has contractual rights to control the litigation (and even make settlement decisions), and whose ability and willingness to pay fees is practically unlimited, I would think that it is required in cases where a friend or family members pays a fixed retainer up front, with no guarantee of continuing payments beyond that amount, and that third party has no right to know the details of what is going on in the case due to the privilege between the attorney and the client on whose behalf they are paying. How else would a client know when she is reaching the limit of her retainer, or approximately how many attorney hours she has left if the lawyer can keep her in the dark at to the rate charged and how many hours have been spent already? I know in your case that is likely no longer an issue, because she’s been terminated and it doesn’t appear that you’d be the recipient of any refund, but the principle of an attorney having to provide a client with an accounting of charges on her case shouldn’t be ignored on that basis alone. It would set a bad and dangerous precedent.

  33. Mike says:

    Hi,

    My wife and I just settled a homeowners claim(Florida) through litigation with our insurance company. To make a long story short we fired our first attorney about 18 months into the case. Basically he lied to us about the amount he was willing to invest in investigation, expert witnesses etc to settle our case . At mediation he wanted us to take a low ball “just go away” settlement. When we said no way he mentioned if we wanted to find another lawyer he would wash his hands of it. So we did. When we hired the other attorney we gave him the run down. I asked him if he wanted me to get a release from my attorney before proceeding and he said “Ill take care of it” . He said from the court docket it doesn’t look like hes done too much at all. Needless to say the former attorney placed a quantum meruit lien on our settlement and things are turning into a mess. The former attorney is asking for a ridiculous amount as far as we are concerned. So I guess my question is … Do you think the judge would take his fees from our portion of the settlement or my current attorney’s. I really wish both Attorney’s would own up to what they said (Current Attorney said I’ll take care of it) and (former Attorney said he would wash his hands of it). Seems like neither is willing to stick to their word.

    • fl_litig8r says:

      Unless your contract with the second lawyer provided that his fee would be reduced by the amount paid to the first lawyer, he is entitled to his full contingency fee and the original lawyer is entitled to quantum meruit (if the court finds that he didn’t waive his fee). I’m afraid the “wash his hands of it” language of the first lawyer doesn’t necessarily mean that he wouldn’t be seeking fees. It’s an argument to make, but if he says he only meant that he would was his hands of further representation, and not that he would was his hands of fees accrued, his ambiguous statement probably wouldn’t preclude him from seeking quantum meruit. You should have confirmed with him in writing that he would not be seeking a fee.

      . . .which brings us to the representation of lawyer #2 that “I’ll take care of it.” Take care of what, exactly? From what you’ve written, it could have meant that he’d handle notifying the old lawyer and the court of the new representation, having the old lawyer release your file to him, and handling the Motion to Substitute. When you mentioned getting a release from your old lawyer, unless you expressly made it clear that you were referring to him not seeking fees, lawyer #2 may have interpreted that as getting a release from further representation or a release of your file.

      I’m hoping that you weren’t as ambiguous about the matter as you’ve indicated here, so that it was clear that lawyer #2 agreed to make sure that lawyer #1 wasn’t still seeking a fee. Even if he did agree to handle that matter, I don’t know that the court would hold him responsible if lawyer #1 refused to put a fee waiver in writing, especially if lawyer #1 is now claiming that he never agreed to waive fees in the first place. If lawyer #2 can’t convince the court now that lawyer #1 agreed to waive his fee based on the “wash his hands” statement, then he couldn’t have done so back when he supposedly agreed to handle it originally — in short, his failure to obtain the waiver of fees caused you no damage because he couldn’t have forced lawyer #1 to give you one, anyway.

      One silver lining that you can take from this is that the figures lawyer #1 put forth are likely based on the “lodestar method” (# hours x hourly rate — and the hours he put forth are no doubt inflated), and a court deciding quantum meruit fees won’t use this as the sole basis of awarding fees (assuming it awards any). In fact, the Florida Supreme Court specifically eschewed the lodestar method as being appropriate for determining quantum meruit fees — instead, it requires a “totality of the circumstances” standard be applied, using the requirements for determining a reasonable fee set forth in the Florida Rules of Professional Conduct. In short, the court can award however little it sees fit if it thinks that the lawyer didn’t do a very good job — the maximum it can award, even under quantum meruit is the amount that would have been awarded as a contingency fee. Therefore, if lawyer #2 got you significantly more money than lawyer #1 was recommending you take and/or put a lot more time (real time, not made up time) into your case, the court can consider that in determining how much of a fee lawyer #1 should get.

  34. Mike says:

    Lawyer #2 got me ALOT more money than number#1 wanted us to take. Problem is Lawyer #1 has no problem with making a bold face lie and I’m sure he would do it again with regards to admitting how much he wanted us to settle for. Ambiguous..yes Good lawyers always leave themselves an out. I agree. I really didn’t believe anything that came out of #1’s mouth anyway. I had no choice in firing him. He wasn’t willing to pursue the case any further. He just wanted to fold like a cheap lawn chair. If I was the insurance company I wouldn’t have settled either. His lawsuit had no teeth and they knew it. Too bad I didn’t. As far #2 goes I was specific when I asked him about #1’s fees. He just kind of shrugged his shoulders and said.. He didn’t do much. Maybe a couple of thousand dollars. In hindsight I know I should have done this or that. I was naive to take their word. It feels great swimming between two sharks. Guess its just up to the judge now. Thank you for your input. I appreciate it.

  35. Mike says:

    One other question. Would my former Attorney need to file the lien in court?

    • fl_litig8r says:

      No. Lawyers will frequently file notice of their liens in the court just to be sure to give all parties notice of its existence, but notice can be given informally as well. It’s still enforceable even if it wasn’t filed with the court in your underlying case.

  36. Mike says:

    I read your article very informative. My case is that I hired a lawyer, he had verbally agreed to handle my case for $1500 (he told me I had so many charges, later find out that my charge was just an aggravated harassment phone calls, and nothing more, else I wouldn’t have hired him) . I wrote him a check of $1000. We never signed a retainer agreement. He told me, that he will show up to the court at 9am. I was called 3 times, but no lawyer. Later he had sent his associate at 3pm. I was released without any bail. I left him a voice message thanking him, and also told him, that it was not kool that I had to wait a bit longer, but now that I’m released it’s all fine. The next morning he text me, and asked me to drop him another $1500 to his office. Now I had no agreement, and I know if I don’t comply with his $1500 request he might not show up for the next court date. I called my bank and stopped the check. I called him, up and he told me that we agreed for $3500, but later since you were refer by his client, he dropped a $1000, and now you had to pay him $1500 more, in the same phone call he told me, okay the next court date pay the $500. But I told him, I ‘ve canceled the check on him.
    I told him, we agreed that the whole case is for $1500, and he also never showed up on time, and as well lied about my charges, or I wouldn’t have hired him. I’m still willing to pay him the $1500, now since he being dishonest, I asked him to send me the agreement sign by him, and I’ll send him a check in portion….probably $500 each time he show up to the court, or I can ask for the legal aid. Now he is threatening to arrest me, and sue me. Does he has any legal ground? I mean we didn’t sign no papers, and we agreed on $1500 for the total case? At one point he sent a text message stating I should drop $1500 to his office, later he say okay drop $500. I had agreed with him, that I’ll pay him the $500 after the case is finished. Nothing written….Now I don’t want to pay him anything until he send me an agreement, and I’ll pay him $500 at a time….am I doing it right, or breaking any law?

    Thanks.

    Updating: I mean no sign papers: I mean to say we never singed any retainer agreement. My friend told me he agreed for $1500 in total, when I went to his office, he said $2500, and I said no I got $1000 now, and I’ll pay $500. As my friend told me that you agreed for $1500. He took my $1000 check, and said okay. Now, the next day my friend told me since I got you a $1000 discount from the lawyer, I should pay him $500 or I’ll have the deal off…so he probably called the lawyer, since I told my friend that I got no money. (MY Friend is just a guy who referred me to him). The lawyer text me to drop another $1500….the rest of the story is in the above posting. Thanks, hope I get a reply….

    • fl_litig8r says:

      You tell one hell of a confusing story, so I can’t say I’m surprised that there was some confusion in your agreement with this lawyer. From what I gather, your friend told you this lawyer would handle your case for $1500, but when you went in to see the lawyer, the lawyer asked for $2500. You told him that your friend said it would only be $1500, and the lawyer agreed to accept $1000 as a retainer. It’s unclear from your story whether they lawyer ever explicitly said to you that he would handle your whole case for a flat fee of $1500, which is obviously important. Of course, none of this is in writing (which isn’t uncommon for non-contingency fee cases), so it boils down to a “he said, she said” argument with you and the lawyer. Adding to this mess is your “friend” who apparently wanted $500 from you for his part in supposedly getting you a $1,000 discount from the lawyer, so who knows what this person will say if he is asked what the arrangement with the lawyer was. Depending on your state’s ethics rules, if the lawyer had an arrangement with this person whereby the person would refer clients to him and get a cut of the fee (I really don’t care that they couched in terms of the lawyer giving you a discount and part of that discount gets paid directly from the client to the friend, it operates as a “fee for referrals” deal when the lawyer won’t honor the discount if the friend doesn’t get paid), this lawyer may be violating the state bar rules both for solicitation of clients and for fee splitting (which usually can’t be done with non-lawyers). You can usually find your state’s attorney ethics rules on your state bar’s website, often along with “ethics opinions” written by the bar which help interpret the rules.

      If at all possible, I would not have a lawyer like this continue to represent me and I would try to find one who is clear about the fees he charges up front (and doesn’t use “bird dogs” to get clients). That suggestion doesn’t really solve your problem with the check you stopped payment on and the consequences of that, however. If he’s threatening to have you arrested (another great reason to find another lawyer), it’s likely under a check kiting or fraud statute, which doesn’t seem applicable here (assuming you had sufficient in your account to cover the check at the time you wrote it). That really depends on your state’s check fraud statutes, but generally when you had the money to pay the check in your account and the intention to honor it when you wrote the check, it won’t be a criminal matter if you later stop payment on it over a business dispute. He can sue you for breach of contract civilly, and he will likely be entitled to some amount of money for the services he provided regardless of what was agreed upon (under a theory of quantum meruit, as I discuss in this article). Therefore, my suggested course of action would be to try to settle up with the lawyer for a fair amount to cover the work his office already performed, but to find another lawyer to represent you for future proceedings. Also, I’d find a new friend.

  37. Brooke says:

    Just a quick question…I have a 2 year old S.S. Disability (Traumatic Brain Injury) case in Florida. It appears my attorney couldn’t care less. I would leave messages for weeks asking for and update…nothing. When I put in the research for some of the best ways to go about winning this type of case, we hadn’t done most of them. So I sent a letter saying I was ending the relationship due to complete lack of communication or progress. I IMMEDIATELY got a letter back saying they were sorry to have to end the relationship (like it was their idea), but they were going to still take their fees !
    Do I have any options?
    I have a great alternate attorney, but why should they take they case if the original attorney is going to take all the fees ?
    Thanks for your help.

    • fl_litig8r says:

      You face an even greater hurdle than you think. While a single attorney can use the SSA’s “fee agreement” system, whereby he agrees to accept the lesser of 25% of back benefits or the statutory cap amount (currently $6,000), if more than one attorney is appointed as representative (and neither agrees to waive his fee), then they must use the “fee petition” system, which usually causes drastic delays in payment and often low fees. Even if you find a lawyer willing to take on your case with your prior lawyer still asserting a fee, the combined fees of the two may ultimately exceed the $6,000 fee agreement cap.

      While you could try to challenge the first lawyer’s entitlement to a fee if you could show that he was terminated for cause, that’s not going to be easy, and it’s unlikely that a lawyer would want to spend the time helping you do it because he might wind up spending more time on that than the first attorney would be awarded in fees, and he wouldn’t be compensated for that time at all.

      I can’t say whether you had cause to fire your first lawyer. The most frequent delays in social security disability cases are caused by the backlog of cases awaiting an ALJ hearing, something the lawyer can’t do anything about. I also can’t say if your lawyer was doing enough to win your case. Most social security disability cases aren’t rocket science, and I don’t know if the things you researched were really necessary or cost effective to win your case. In fact, I don’t know if your case will be won at all, even if heroic measures are taken.

      The only thing I can suggest is that you talk to your potential new lawyer about it and see if he or she might be able to persuade the old attorney to waive his fee and just accept costs (so he doesn’t lose money from representing you). If this was a contentious relationship with the old lawyer, that might be difficult, especially if he’s pursuing the fee out of spite.

  38. FiremenDavid_TeacherTiffani says:

    Hi Fi_litig3r
    It is tiff again.
    Your answers,were so on point a week or 2 ago,so very helpful.
    I was speaking to the lawyer i’ve mention last week,who walked off of the case,involving hefty-damage(s)in our familiy lawsuit,against cps doing well pro se(just prior to hiring him 1 yr.ago)we did not as your sentient,(aware)we did NOT fire him,he shockingly walked off attempt to blame on a C.O.I.(conflict of interest,that did not exist)In any event,we did conference-in 1 last time,and i have just decided,to represent ourselves,(at least to review ALL discovery that was also marked,”for attorney eyes only.”He relied on 1 single report,of such falsities,by a abhorrent state agency dcf,cps worker report,without even determining such accuracy,nor speaking to my child,my son now 21,and myself late 30s,who would have naturally verified,if it was true or not,since i have been cleared,by office of attorney general 3 yrs ago,when child turn 18.I would not want to work with a lawyer like this,now that i see his real incompetence and indolence,for which any astute lawyer will interview his own injury client,then authenticate such realness of the report,law school 101 i’ve learn this as a 2L law student, years working in this field.I am happy he is gone,but 1 relevant query sir is this…

    I have contacted the federal court,where suit is being heard out of,
    for damages.The”judge law clerk”adage,”We did receive your letter
    ask for a date,where your able to in person request discovery access to entire file;premise on your lawyer voluntarily leaving your suit,and lieing to you,not at all doing what he is suppose to do in the crucial discovery phase for damages etc.al; but he is”still” your lawyer of record?
    I inform the court,this is a falsehood.He said,he has withdrawn.
    Court cites,”Well,he has inform me tiff,that he has legally 10 or so days as most states do to wait to see if first YOUR going to hire new counsel,then turn all discovery over to him.”or her etc.

    I said,we are remaining PRO-SE as is our right,until lawyer & if a lawyer is found.

    Is this how it works?
    He said also how your”lawyer”said,he will file a “motion to withdraw after the tenth day is up.” But i was telling the court,he told me since august 30 or so sept.1 that he was off the case,and i am acting pro-se…

    So question is:
    Don’t the lawyer have to,from day 1 of withdrawing from case
    have to turn discovery over? He lie to the court saying the complete antithesis,but i feel good,and ready now to procure discovery and it has been over ten days,and again i just want to remain and shall pro-se,”until”we are able as a family review the’1’doc he said that was so damning,to validate who he was referring to,and sift through piecemeal,all discovery then start interviewing counsel,as
    we have already done.

    thank you SO MUCH
    love your SITE.so much.

    from tiffani

    • fl_litig8r says:

      If I understand correctly, your lawyer hasn’t filed a motion to withdraw yet and because of that you can’t access the discovery in the case. When you say you can’t access the discovery, are you talking about the lawyer’s hard copy files or was this filed online and the court won’t grant electronic access to you because you still have an attorney according to their records? If you’re talking about the lawyer not turning over his case file to you, the only ethical basis for that would be if he had a retaining lien or if he wanted you to pay the reasonable costs of the copies and you refused.

      I don’t know what they’re talking about with a so-called 10-day waiting period. If this was some internal court rule whereby a case isn’t classified as pro se until 10 days after a lawyer withdraws, I could understand that, but if your lawyer hasn’t even filed a motion to withdraw yet, I don’t know what they’re talking about.

  39. virginia martimez says:

    My question is not quite in this category. I am going through a chapter 13. My lawyer filed his fees with a collection company. I have yet to sign the substitutionof attorney. This was my first time to hire a lawyer. Is it OK to sue the client prior to the substitution of attorney? The lawyer who is sueing is not the chapter 13 lawyer. Just wanted to know if a laywer can sue you
    before the substitution of attorney forms are filed . Thankful for and advice on this.

    • fl_litig8r says:

      I would think so. Even if the substitution has not been completed and the lawyer who is seeking collection is still technically considered your lawyer by the court, if he is no longer authorized to act as your lawyer I would think that would be sufficient grounds to sue for any fees he believes you owe without violating the conflict of interest rules.

  40. Amber [last name removed by admin] says:

    I hired a lawyer in WV over a DUI charge I received in May 2014. He has not returned any phone calls, and when I finally spoke to him yesterday, he claimed the DMV, and the city office wasn’t cooperating and sending him information he requested. Basically, he finally said he had not even looked at my case. I have court on 10/3, which is the day after tomorrow and he didn’t even know we had to be in court on that date! He had no idea of what day or time we needed to be in court. Can I fire him and get my money back? Even half of it, and I would be happy to represent myself… I feel like I have a better chance to plead my case before the judge and get the DUI charge dropped to a lesser charge.
    Thank you for any quick info you can provide!

    • fl_litig8r says:

      Whether you can get some or most of your money back really depends on your retainer agreement and whether it complies with the West Virginia state bar’s ethics rules. Non-refundable retainers are generally no longer allowed, unless they are a “true retainer”, as I discussed in my July 15, 2014 response to the question by Maria, above. West Virginia apparently holds the same opinion as most states when it comes to non-refundable retainers, as explained in this ethics opinion (pdf warning). You can see all the published West Virgina ethics opinions organized by category here (the one I cited above is under “Fees”).

      In short, unless you paid your lawyer a “true retainer”, as opposed to an advance on fees which he was expected to earn, you should be able to get most of your money back. Because true retainers are so rare these days, I can’t imagine that the money you gave your lawyer was one. If your lawyer won’t agree to return the unearned portion of his fee (he’s entitled to payment for the time he put in so far, which doesn’t appear to be very much), and he tries to claim that your retainer is non-refundable, send him the ethics opinion I linked to above and tell him that if he doesn’t reconsider, you’ll file a bar complaint.

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