Q: I was in a very serious automobile accident and was badly injured. I hired a lawyer who said he was top notch, but months in, I cannot get him on the phone, he rarely responds to emails and I do not know what is going on with my case. These are my first questions: I can fire him and replace him, right? Anything to be aware of in this regard?
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D.A., Los Angeles
A: Yes, in California you generally have the right to discharge your personal injury lawyer and hire someone else. It could be problematic if the case is about to go to trial, or there are circumstances where your choosing to retain another lawyer could cause undue delay or disruption (but these exceptions are infrequent). In your situation, it sounds like it is still pretty early on.
You should review any retainer agreement you have with the current attorney. Does it set forth certain rights he or she may seek to assert? You also want to learn at least as much as feasible about what is going on in your case. Note that the file is yours, and the lawyer should promptly provide it to you or to your next attorney. The first lawyer can make a copy. Frankly, some of this — in fact, most, if not all — could be handled by your new attorney.
The lawyer whose services you are planning to terminate may seek to assert a lien. This, too, is something to go over with your new lawyer. The lien typically will be on the fees your new lawyer is to be paid from any recovery in the case.
Q: Next question: I understand my current lawyer might claim to be entitled to some fees, maybe even costs from any future recovery. How does that work?
D.A., Los Angeles
A: Yes, there is a lien the initial counsel may seek to assert. Often, it involves a written notice that he or she is asserting a lien, which is filed and served in the case.
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The amount to be paid turns on the “reasonable value” of the services rendered by this first attorney. Did the lawyer or the lawyer’s office undertake certain steps, did the lawyer or the lawyer’s staff carry out some actions, and if so, were those of benefit? What would be the reasonable monetary value (if any) to associate with what this first lawyer and his office did?
Costs arguably are simpler because they are set, and already paid, but there should be back-up, and those expenses should be reasonable as well.
Your new lawyer may eventually seek to negotiate what your current lawyer is going to receive, if anything, from a monetary recovery in your favor.
The file is yours
California Rule of Professional Conduct 1.16(e)(1) provides that when representation terminates, the lawyer “promptly shall release to the client, at the request of the client, all client materials and property.” Among the records to be turned over may be correspondence, pleadings, deposition transcripts, expert reports, exhibits, physical evidence and other items reasonably necessary to the representation. The file is to be turned over whether or not the client has paid the lawyer.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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