What to Expect at the Beginning, During, and After the Representation and Your Right to Fire an Attorney
For most people hiring a lawyer for a personal injury, medical malpractice or product liability case is a new and strange experience and most folks have no idea what to expect. This article will try to give you an overview of what to expect when you hire a lawyer, what you should expect your lawyer to do and what will be expected of you during the case and your right to fire your lawyer if you are not happy with the representation you are receiving.*
Hiring a Lawyer
The process of hiring a lawyer usually begins with a telephone conversation with the lawyer’s office. Sometimes it is preceded by a contact over the Internet through the lawyer’s web site, but ultimately there is a telephone conversation. At successful law firms staff members are assigned to talk with every prospective client who contacts the firm either by phone or through the Internet. It is this person’s job to find out what type of case the person is seeking legal representation for and the facts. The realities of life are that the top lawyers are very busy, and simply do not have the time to listen to the complete story from every prospective client who calls; if they did, they would not have time to work on their clients’ cases. So, staff members are assigned to talk to prospective new clients to get the basic facts so a lawyer can determine if the case is one which is within the firm’s areas of expertise and if it is one that would be profitable for both the client and the attorney to pursue.
At the Krasnow Law Firm we call this person our New Client Coordinator, and this person will spend as much time as is necessary listening to the prospective client to learn what the case is about. A memo is then prepared providing our attorneys with the caller’s identity and contact information and the important facts. One of our attorneys will then call and talk to the prospective client, usually the same day. If the case is one that we feel is within our expertise and worth pursuing, the person is offered an appointment with one of our attorneys and there is no charge and no obligation associated with this appointment. When the prospective client is unable to come to our offices for this initial conference, we send a representative of the firm to meet with that person in their hospital room or home. If the case is outside our area of expertise, we will, when possible, offer a referral to a lawyer who might be able to help.
When a prospective client comes for the initial consultation we will explain, step by step, the process that we follow as we handle their type of case. This includes the investigation to determine or confirm the merits of the case, the preparation of the case, the litigation process should that prove necessary and the options available for settling cases without a trial. This explanation also includes the attorney’s estimate as to how long the various parts of the case will take. The attorney will explain the contingent (percentage) fees that we charge and the ethical rules regarding out-of-pocket expenses (costs) incurred during the representation, as well as answer all questions the prospective client may have. The facts of the case are also reviewed. If the prospective client wishes to hire us and we feel we can help this person, a representation letter will be prepared and signed. This will confirm the discussion we have already had with our new client about the case. The client is always given a signed copy of this document.
During the Legal Representation
While your case is being handled there are a number of things that you have the right to expect from your attorney.
- Your attorney will exercise his or her independent professional judgment on your behalf.
- Your attorney will not disclose any confidential information you disclose to him during the attorney-client relationship.
- Your attorney will exhibit the highest degree of ethical conduct and deal honestly and truthfully with you, the adversary, other lawyers and the judge.
- Your attorney will be guided by a fundamental sense of fair play for the process and the participants and will not abuse the system or the profession.
- Your attorney will respect your decisions on the objectives to be pursued in your case, as permitted by law and the rules of professional conduct, including whether to settle your case.
- Your attorney will handle your legal matter competently and diligently
- Your attorney will keep you informed of all significant developments in your case and provide you with copies of important documents.
- Your attorney will respond promptly to telephone calls and written communications.
But during this time period you have some responsibilities as well.
- You must be completely honest with your attorney at all times. False information given to your lawyer can damage a good case irreparably. Information that you withhold from your attorney is far more likely to damage your case than disclosing it.
- You must keep your attorney informed as to where and how you can be reached. This includes new home addresses, new work, home and cell phone numbers and new e-mail addresses.
- You must respond as quickly as possible when your attorney tries to contact you.
- When you want a status report on your case, when possible, use the paralegal assigned to your case or your attorney’s secretary as your contact person. Frequently they will be able to give you the answer or get you the answer faster than your attorney can get back to you.
- When you call your attorney and he or she is not available, leave a confidential voice mail message so he or she will make sure the answer is available when calling you back.
- Keep your lawyer informed of any significant changes in your medical condition and treatment or anything else important to the case keeping in mind that many times this information can be relayed to your paralegal or your attorney’s secretary.
- Remember the time estimates your attorney gave you at the beginning and that every one of your attorney’s clients think their case is the most important one the attorney is handling; and to you and them it is. But your attorney has an equal responsibility to every client.
Firing a Lawyer
A contract to hire a lawyer is unlike any other contract you will ever make. It is a contract that you, the client, can terminate at any time and for any reason you think is appropriate. Changing lawyers in the middle of a case is never a good idea unless absolutely necessary, just as changing horses in midstream should not be attempted if there is another suitable alternative. For that reason when a client is unhappy with the representation being provided by the attorney, every effort should be made to resolve whatever problems have arisen. This should include letters, e-mail, and telephone calls and if nothing else has worked, scheduling an appointment. You can even try talking to a more senior lawyer in the firm, if such a person is available. It is essential that you tell your lawyer just what it is that has caused you to be unhappy because if the attorney does not know what your problem is, it is unlikely he or she can fix it.
Sometimes these problems cannot be resolved and then the client will have to make the hard decision to change lawyers. To discharge your attorney you only need to send your lawyer a letter telling the lawyer that you are discharging him or her and why. Once the lawyer has received this letter you are then free to talk to any other lawyer about taking over the case.
Frequently, people who are unhappy with their present attorney will call another lawyer seeking advice about the case and inquiring if that lawyer will take over the case. When an attorney is called by someone who is represented by another lawyer, there are some ethical limits as to what advice the attorney can give. In addition, it is unethical for one lawyer to say anything to someone who is represented by another lawyer to encourage that client to discharge the present lawyer so he or she can take over the case.
For much routine legal work lawyers charge their clients for the time spent on their cases, billed at an hourly rate. Sometimes attorneys charge flat fees for a case without regard to the number of hours the job may take. Personal injury cases of all types, including medical malpractice cases are routinely handled on a contingent fee basis where the attorney’s fee is an agreed percentage of the gross amount recovered in the case.
When a client fires a lawyer who has been working on a case on an hourly basis, the attorney is entitled to be paid for the time spent on the case up to the date of discharge. In some cases the attorney may also be entitled to payment for time spent in effecting the change of attorneys as well. Where an attorney was handling a case for a flat fee and is discharged, the attorney should be entitled to be paid for whatever percentage of the work he had completed prior to discharge and which will not have to be redone by the new lawyer.
But in a contingent fee case the compensation the attorney is entitled to received for the services provided on the case prior to being fired may well depend on whether the attorney is being discharged for cause (the client has legitimate grounds to fire the attorney) or without cause. When an attorney is discharged for cause that attorney is not entitled to any fee for the services provided regardless of the ultimate outcome of the case. But if an attorney is discharged without cause, the contingent fee agreement changes to what is called quantum meruit, (Latin for how much is it worth?) This is usually expressed in an hourly rate but even this fee is still contingent on the case being successful. If the case is unsuccessful the discharged attorney gets the same fee he would have gotten if he had completed the unsuccessful case, nothing.
A client who discharges an attorney in a contingent fee case and hires a new lawyer to complete that case should make sure there is a clear written understanding as to whether any fee due the old lawyer comes out of the new lawyer’s contingent fee or is in addition to that fee. The obligation to pay attorney’s fees is different from responsibility for out-of-pocket expenses which is governed by the state bar ethical rules of each state.
Note: The principles discussed in this article are general legal principles which apply in many but not all states. Nothing contained in this article or this web site constitutes legal advice or the establishment of an attorney-client relationship.