Of course, you can always fire or disengage your attorney. But first, it is critical to sit down and meet with him or her. There may be a communication issue that is easy to resolve. Potential clients often come to us with this question, and, upon review, their lawyer has been doing a fantastic job advancing the client’s interests. Unfortunately, the lawyer is simply not communicating what he or she has been doing, or why they are doing it. As a result, the client does not know that, in fact, he or she is being adequately represented.
If your case is in suit, withdrawal of counsel requires permission of the judge. That permission is usually given if you have an experienced personal injury lawyer ready to enter his or her appearance. If your case is not in suit you need to simply retain a new lawyer.
The issue sometimes becomes how does the first lawyer’s fee get paid? But first, are you ready to switch? Do you need to?
The Critical Moment in Personal Injury Cases
I like to explain to clients that there is often a “critical moment” in their personal injury case. It could be during cross-examination at trial, but more often it is in when making a decision with their attorney. For example, when the insurance company has offered a certain sum of money and it’s below what is expected. How do you decide?
Often, the critical moment is decided by having a level of trust with the injury attorney. You have worked with him, or her, discussed the case, understand the positives and the negatives, and appreciate what the next steps are if the case is not resolved at the point when you have that critical moment.
You need to build up your trust in your attorney so that, at the critical moment, you feel that your legal interests are being fully and completely represented.
Massachusetts Car Accident Attorney Fee Agreements and Changing Lawyers
The Massachusetts Supreme Judicial Court now requires that car accident lawyers and other personal injury lawyers use certain language on their contingent fee agreement, which factors in changing lawyers.
The history of the rule changes, which now reflects the American Bar Association model rule, may be simply catching up with the national rules and those coming out of Supreme Judicial Court cases — Malonis v. Harrington in 2004 (where the prior attorney received his fee based on his hours, reducing the second attorney’s contingent fee), Saggese v. Kelley in 2005, and Liss v. Studeny and In the Matter of the Discipline of an Attorney in 2008.
The new fee agreements do not resolve all problems regarding fees between attorneys, however. The goal if the new agreement is that the first lawyer will be paid a fee based on his or her hours, and that the fee will come from the subsequent lawyer’s share of the contingent fee. An experienced lawyer will work with your prior counsel to resolve the issue.
Fee Agreements and Out of Pocket Fees
Another key element of the new fee agreements is the disclosure of out of pocket fees on contingent fees cases. The changes to Massachusetts Rule of Professional Conduct, Rule 1.5 was proposed by an SJC advisory committee, with input from the various bar associations.