The short answer is “yes” you can change attorneys. However, there will be consequences that might make it impossible to get a replacement attorney.
The attorney in a personal injury claim does not get paid until the claim is concluded, either by settlement or trial. So, if you are not at the settlement stage, does that mean that the original attorney gets no fee? The doctrine of ‘quantum meruit’ governs this situation. What this means is that the attorney is entitled to a fee for the value of his or her services under the contract. This is called a ‘charging lien’.Payment would be made at the conclusion of the claim and would amount to compensation for the value of the services performed by the original attorney. Interviews, letters, phone calls, and everything else take time and the attorney would be entitled to be paid for the value of those services.
The amount that the original attorney would be claiming may make it impossible for you to hire a replacement attorney. This would especially be true of a claim that does not have catastrophic injuries. There just may not be enough fee to split between the original attorney and the one finishing the claim.
There is, however, an important requirement for the original attorney to claim a charging lien. The discharge of the attorney must be the client’s idea. If the attorney withdraws, without the insistence of the client, then the attorney cannot claim a charging lien. If the attorney thus withdraws, the client is free to hire a new attorney, who will be able to collect his or her entire fee.
This sounds confusing, so let me show how it works. If the original attorney negotiates a settlement, but it is not one that is acceptable to the client, then there are two possibilities. The client can reject the offer and indicate that he or she is ready to go through litigation. Now the original attorney has a choice. The attorney can agree to file the lawsuit, in which case the charging lien would be valid. Or, the attorney may decide that the claim is not one they want to commit to a lawsuit. If the client insists that the offer is inadequate and a lawsuit needs to be filed, then the attorney would be forced to withdraw if he or she won’t file the suit.
If the attorney withdraws and refuses to go forward as the client has directed, then the attorney must withdraw and NO charging lien applies. A new attorney can agree to represent the client without having to share the fee.
A must better course would be to question the attorney BEFORE signing the fee agreement about the attorney’s willingness to take this particular case to litigation. Unfortunately, some firms recommend and file suits on a very small percentage of their claims. Ask the question – what percentage of the firm’s claim go to litigation. If it is very small or if the attorney dodges the question, perhaps you should go elsewhere from the beginning.
By the way, I regularly and frequently file a lawsuit for a client. Contact me today for a consultation.