Can I Get a New Lawyer in my Personal Injury case?

Written By Christopher Dolan and Nancy Villatoro

This week’s question comes from Anonymous who asks: Can I change attorneys at any time? What are things I should consider when doing so?

Dear Anonymous:

Thank you for your question. You have the right to discharge your attorney at any time and for any reason. In certain circumstances, your first-choice attorney may not be the best fit for you and your type of claim. You may realize that you can pursue a claim on your own or that another attorney better fits your needs. Here are some things to consider as you make your decision.

Generally, if you have signed a contingency agreement, changing attorneys does not cost you more money. When hiring a personal injury attorney, you have presumably signed a contingency agreement under California law, (Cal. Bus. & Prof. Code § 6147; Fletcher v. Davis (2004), 33 Cal. 4th 61, 71.) This agreement states that your lawyer gets one-third of your verdict or settlement if any. You will reimburse your attorney for any costs incurred.  When you change lawyers, your new lawyer and your old one will share this fee. The total amount you pay for attorney fees will likely remain the same depending on your new agreement. The attorney will split the fees according to how much work was done on your claim. Additionally, changing lawyers may be in the best interest of your claim. You may find an attorney that will work harder for you and has more resources may get you a better outcome. When making the change, by law, your old attorney is required to provide you and/or your new attorney with all your records.

In other less desirable circumstances, an attorney may elect to decline or terminate their legal representation. In California, the Rules of Professional Responsibility, Rule 1.16 lists the circumstances where an attorney may withdraw from representing a client. Withdrawal most commonly occurs when:

1. “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;”
2. “the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation; or
3. “the client knowingly and freely assents to the termination of the representation” (this one is most likely to have less contention.)

Number one and two above generally may occur after the attorney and the client have irreparable differences, the client has become unreasonably difficult, or the client refuses to cooperate during the litigation. 

An attorney that is either discharged or withdraws prematurely can prevent the former client from “settling around” their lien by filing a notice of lien in the pending action. (Valenta v. Regents of University of California (1991) 231 Cal. App. 3d 1465, 1469–1470.) However, to enforce the contractual lien, the attorney will have to seek an independent action against the former client to establish the lien’s existence, determine the amount of the lien, and enforce the lien. (Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1173. 2002.) 

If an attorney is discharged or withdraws “on the courthouse steps” and substantial representation has occurred, the court will consider this to determine the reasonable value of the attorney’s services. The court may justifiably find that the entire fee was the reasonable value of the attorney’s services. (Hood vs. Gonzalez (2019) 43 Cal.App.5th 57, citing Fracasse vs. Brent, (1972) 6 Cal.3d 784; See also Oliver v. Campbell (1954) 43 Cal.2d 298.)

Under a contingency fee agreement, when an attorney withdraws from representation based on “justifiable cause,” he or she is entitled to recover in quantum meruit. (See Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656; See also Estate of Falco (1987) 188 Cal.App.3d 1004.) Under quantum meruit the law implies a promise to pay for services not gratuitously rendered. (See Long v. Rumsey (1938) 12 Cal. 2d 334.)  “The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant [former client].”  (Palmer vs. Greg (167) 65 Cal. 2d 657, 660.) A quantum meruit recovery requires a trial court to consider several factors:

“‘[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure of the attorney’s efforts, the attorney’s skill, and learning, including his [or her] age and experience in the particular type of work demanded.” (See Mardirossian & Associates, Inc. v. Ersoff, (2007) 153 Cal.App.4th, 257,  272.)

The underlying idea behind quantum meruit is the laws distaste for unjust enrichment. If one has received a benefit which one may not justly retain, one should restore the wronged party to his or her former position by either returning the “thing or its equivalent in money.” (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, Section 91, p. 122.)  

Although changing your attorney may seem simple, do your research before retaining an attorney and seek a second opinion when needed. In some circumstances, clear communication can be your best solution.