Can You Fire a Personal Injury Lawyer?
Hiring a personal injury attorney can be difficult, as you might not understand the type of personality you are hiring until well after that decision has been made. Often times, clients wish they had better communication with their lawyer or otherwise disagree with the strategy of the case. Other times, it may seem as if the case is taking far longer than expected and you can’t seem to get a straight answer as to why. If you find yourself in any of these situations, you may be asking yourself, “can I fire my personal injury lawyer?” Let’s take a look at this issue in this post from the personal injury lawyers at Sawan & Sawan.
Choosing the Right Lawyer
The easiest way to avoid having to ask this difficult question is to make sure you vet your personal injury lawyer as much as possible before hiring them. This can be done by doing the following:
However, unfortunately – even with these steps – situations can arise wherein you just can’t reconcile with your personal injury lawyer. When this happens, you may be wondering if and how you can fire your personal injury lawyer and seek new counsel.
Firing Your Personal Injury Lawyer
The choice of legal counsel is the clients – and the clients alone. One of the most common complaints about legal counsel is a lack of ongoing communication. Rule 1.4(a) states that a lawyer shall do all of the following:
- keep the client reasonably informed about the status of the matter;
- comply as soon as practicable with reasonable requests for information from the client
In short, you absolutely can fire a personal injury lawyer and seek new counsel. When you terminate the attorney client relationship, it is advisable to do so in writing and in unambiguous language. As part of the termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to protect a client’s interest. The steps include giving due notice to the client, allowing reasonable time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. Client papers and property shall be promptly delivered to the client. “Client papers and property” may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation. Remember that your file and the documents contained therein are yours – and they should not be withheld in an effort to coerce you to stay.
A lawyer’s duty to take reasonable steps to protect a client’s interest applies regardless of the reason for the termination of the representation. As explained in Comment  to Prof. Cond. Rule 1.16(d), “[e]ven if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client.” Pursuant to Prof. Cond. Rule 1.0, “ ‘[r]easonable’ or ‘reasonably’ when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.”
Quantum Meruit and Legal Fees
While there may be financial consequences to terminating representation, this is not always the case. Every firm has a different approach to seeking fees after the termination of representation. In Ohio, the law is settled that upon discharging a lawyer in a contingent fee case, a client is entitled to the file and that the lawyer is entitled to quantum meruit compensation but not until the successful occurrence of the contingency. See Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 574-75 (1994). Quantum Meruit stands for “the value of the services” and is established based on a reasonable calculation of the hours spent on a mater multiplied by a reasonable hourly rate. However, it’s important to understand that while lawyers may have the right to charge this, it’s relatively rare that they do.
It’s also important to remember that a terminated lawyer must give you your file. Disciplinary opinions throughout Ohio are incredibly clear about this. For example, In Reid, a law firm refused to give a file to a client who discharged the law firm in a contingent fee case and conditioned the release of the file upon the client executing a guarantee modifying the prior contingent fee agreement. Id. at 575. The court noted that for all practical purposes the client was made to execute the guaranty to obtain the file. The court found the guaranty not enforceable because the law firm should not have imposed the condition of the release of the file upon the client’s execution of a warranty modifying the contingent fee agreement. Id. at 575. The court stated that “[a]long with the mandatory obligation to withdraw from a case when discharged, an attorney who is discharged must yield the case file. At the time the appellant [client] discharged the law firm, the firm was required to return his case file to him, and to cease any and all involvement in the case.” Id. at 574.
In Ohio, lawyers have violated Prof. Cond. Rule 1.16(d) (and other rules) by refusing to turnover client files to the client. In Lake Cty. Bar Assn. v. Kubyn, a lawyer received a public reprimand for violations of Rule 1.16(d) and (e). 121 Ohio St.3d 321, 2009-Ohio-1154. The lawyer was hired to represent a client in divorce and other matters and was paid $5,000. Upon the client’s dissatisfaction and discharge of the lawyer, the lawyer did not comply with requests for an itemized bill, the return of any unearned fees, or the client file. The successor attorney had to recreate the file. The lawyer claimed to have no duty to produce the file because he had sent the client copies of all the paperwork as generated or received. The lawyer never did return the file, but did send an itemized bill and a refund of unearned fees. Id. at 322.
In Disciplinary Counsel v. Bursey, a lawyer received a permanent disbarment for
misappropriating money held in trust for clients, forging clients’ signatures, commingling client funds with the lawyer’s funds, and committing numerous other acts of professional misconduct, including not returning a client’s file as requested. 124 Ohio St.3d 85, 2009- Ohio-6180. The request for the file wamade by a client who had hired the attorney for representation on a contingent fee basis in personal injury lawsuit. The lawyer failed to keep her apprised of development and rarely returned her calls. After the client filed a grievance, the lawyer promised to complete the work for a reduced contingent fee and to call the client weekly until the claim was resolved. The lawyer did not honor his promise. The client discharged him. The lawyer never returned the file as requested. The client was forced to retain another attorney with less than six weeks left on the statute of limitations. By this conduct the lawyer violated Prof. Cond. Rules 1.3, 1.4(a)(3) and 1.16(d). Id. at 88-89.
In another client’s personal injury matter, the lawyer violated Prof. Cond. Rules 1.4(a)(3), 8.4(c), and 8.4(h), for his misconduct which included not responding to the client’s requests for his file and by the client not being able to locate the lawyer. Id. at 91
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Dennis E. Sawan
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Dennis P. Sawan
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Christopher A. Sawan
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