Should I Fire My Lawyer, and How do I do it?

Remember, your lawyer works for you; you do not work for your lawyer.

Evaluate whether you should fire the lawyer.

Consider the following in deciding whether you should fire your lawyer:

1. Does your lawyer appear competent? (When a legal issue arises, do you get a clear, concise answer, or gobbledegook?)

2. Does your lawyer keep you informed? (Returns telephone calls and responds to your letters and e-mails reasonably timely? Timely informs you of important developments?)

3. Is your lawyer (not just your lawyer’s staff) reasonably accessible?

4. Does your lawyer have positive experience in the field for which you have retained your lawyer? You are allowed to ask your lawyer pointed questions about this: i.e., Have you drafted a will before? Have you successfully applied for a patent before? What makes you competent to give tax advice? Have you tried this type of case before? How often do you appear in court?

Does your lawyer appear to be representing you or someone else?

Typically, the client retains and pays the lawyer. In this situation, the lawyer should place the client’s interests before the lawyer’s interests. So, if after being completely advised, the client disagrees with the lawyer’s advice, barring a request by the client for unethical conduct, the lawyer should follow the client’s direction (except on purely tactical issues). So, if you say you want to go to trial, but your lawyer advises against it (or vice-versa), your decision, not your lawyer’s decision should control. (Of course, if it is an issue, you must be willing and able to pay the lawyer’s fees and costs to support your decision). Sometimes, a lawyer is retained by one person to represent another person. (Insurance company to represent an insured; family member to represent a criminal defendant; officer to represent a company). In these cases, the lawyer owes his or her loyalty to the person represented, not the person paying. Violating this duty is unethical.

What are the consequences of firing my lawyer?

You will be unrepresented. You may decide to proceed without a lawyer, or you may wish to retain another lawyer. If you retain another lawyer, the second lawyer may have to duplicate the work of the first lawyer (if any work was done), perhaps increasing the fees you will pay. The results of the first lawyer’s work MAY be available to the second lawyer. Retaining a second lawyer might result in delay.

Will I have to pay additional attorney’s fees and costs?

Typically, if you discharge a lawyer for serious ethical breaches, no fee will be owed to that lawyer. However, without lawyer misconduct, the answer to this question depends on part on your agreement with the lawyer. If you retained your lawyer on an hourly basis, you will be responsible for the fees earned until the time of discharge. If you retained your lawyer on a contingent (percentage) fee basis as is typical in personal injury cases, unless your contract with your lawyer provides otherwise, you will be responsible for the value of the services rendered, plus costs expended. Typically, the value of services rendered is determined by multiplying the an appropriate hourly rate by the reasonable number of hours worked. In these cases, the fees are not usually due until the contingency occurs, that is, until you collect on your claim. Sometimes the costs expended are due on discharge.

What happens if I do not pay my lawyer?

Some states, such as Florida, allow the lawyer to retain any item of yours in the lawyer’s possession until the (non-contingent) fees and costs have been paid. This is called a “retaining lien.” The items can include your file, including physical evidence. Some states, such as Florida, allow the lawyer to impose a “charging lien” on any recovery. The lawyer will notify the adverse party of the lien and any payment made to you will be subject to the lien, i.e., the former lawyer’s name will be on the check. Of course, the lawyer may sue you on the contract of representation. Typically, the new lawyer will work out an arrangement with the previous lawyer, avoiding the liens and lawsuits.

If I decide to discharge my lawyer, how do I do it?

You just notify your lawyer of the discharge. It would be best to do this in writing so that a record of the discharge exists. If you retain another lawyer, the second lawyer can discharge the first lawyer. You probably do not need to even state the reasons for the discharge. But, if it is for ethical violations, it would be best to outline those violations in the letter of discharge, so that the reasons do not later appear to be a recent invention to avoid paying a claimed fee. You may want to deal with any claimed fees and costs in the letter of discharge. Get your file as soon as possible from the discharged lawyer.

How does my previous lawyer withdraw?

If there has been no court appearance, the discharged lawyer does not need to do anything. (Remember, to get your file as soon as possible from the discharged lawyer). If the discharged lawyer has an ongoing appearance for you in court, the answer depends on the court in which the matter is pending. A motion, stipulation, court order pursuant to a stipulation of motion, or simply a notice of withdrawal may be all that is necessary.

Clifford M. Miller
Florida Bar Board Certified Civil Trial Lawyer
Miller Law Offices
3760 20th Street
Vero Beach FL 32960-2464