Changing lawyers during a car accident claim: your rights and the steps

You can change lawyers#

The lawyer works for you. You do not need to prove misconduct or give a reason to end the relationship. People switch for many reasons: calls and emails go unanswered, they disagree about strategy or an offer, the lawyer hands the case to someone they never met, or trust simply breaks down.

Before you switch, it can help to say plainly what is wrong. Under the ABA model rules, a lawyer must keep you reasonably informed and promptly answer reasonable requests for information, and the client decides whether to settle, not the lawyer. Some problems, like slow updates, can be fixed with one frank conversation. Others, such as pressure to accept an offer you do not want, are reasons many people decide to move on.

Before you switch#

A few checks now can prevent problems later:

• Read your fee agreement. Look for what it says about ending the relationship, costs the lawyer has advanced, and any fee owed if you discharge them. Our guide to fee agreements explains common terms.
• Talk to a new lawyer first. Many people line up the new lawyer before ending the old relationship, so the case is never left without anyone watching it. The new lawyer may want to see the file before agreeing to take over.
• Check the deadline. Find your state's statute of limitationsStatute of limitations. The law that sets the last day to file a lawsuit. After it passes, a court will usually dismiss the case, however strong it is. Glossary on the state-by-state table, and ask both lawyers whether any other deadline is close.
• Check the new lawyer. Look them up with the state bar before you sign anything; see how to check a lawyer's license.

How the first lawyer is paid on a contingency case#

Car accident lawyers usually work on a contingency feeContingency fee. A lawyer's fee paid as a share of what you recover. If there is no recovery, there is usually no fee. Glossary: a share of the recovery, and no fee if there is none. When a client changes lawyers partway through, the first lawyer has not "won" anything yet. So how do they get paid?

There is no single national rule. The answer depends on your fee agreement, the reason for the change and your state's law. In general terms:

• Payment usually comes from the recovery. In many cases, the first lawyer asks to be paid out of the settlement or judgment, not by you up front.
• The measure is often the value of the work. Many courts pay a discharged lawyer on quantum meruitQuantum meruit. Latin for "as much as he has earned." Payment for the reasonable value of work already done when there is no completed contract to pay under, such as a lawyer discharged before a case ends. Glossary, the reasonable value of the work done, rather than the full percentage in the original agreement. How that value is measured varies.
• The lawyers may share one fee. Often the old and new lawyers agree how to divide a single contingency fee. Under the ABA model rule, lawyers in different firms may split a fee only if you agree in writing, including the share each lawyer will receive. Ask the new lawyer how the first lawyer's claim will be handled, and get the answer in your new fee agreement.
• Costs are usually separate. Money the first lawyer spent on the case, such as for records or filing fees, is often repaid from the recovery as the agreement provides.

State law may also give the first lawyer a lien on the recovery for fees and costs. If the lawyers disagree about the split when the case settles, the ABA model rule says that disputed money is kept separate by the lawyer until the dispute is resolved, while undisputed amounts are paid out promptly.

The details of contingency percentages and costs are covered in our guide to contingency fees.

What happens to your file#

When a representation ends, the ABA model rule says the lawyer must take reasonable steps to protect your interests, such as to give you reasonable notice, allow time to hire another lawyer, hand over the papers and property you are entitled to, and refund any advance payment not yet earned.

What counts as papers you are entitled to is not the same everywhere. An ABA ethics opinion, Formal Opinion 471, reads the model rule to cover the materials you gave the lawyer, court filings, signed documents, correspondence, and discovery and evidence. Under that opinion, the lawyer need not hand over drafts, internal research memos and personal notes. Some states go further; Minnesota, for example, treats drafts differently.

A lawyer may hold papers as security for an unpaid fee only to the extent permitted by law. If the file does not arrive, the new lawyer can follow up, and the state bar can answer questions about the rules where you live.

How to switch lawyers, step by step#

1. Choose the new lawyer. Meet them, check their license, and sign a written fee agreement that says how the first lawyer's fee and costs will be handled.
2. Send a short written notice to the first lawyer. Say that you are ending the representation as of a date and that your new lawyer will contact them. Keep it brief and factual. Many new lawyers send this letter for you.
3. Ask for the file and an accounting. Request your complete file, a list of costs the firm advanced, and the status of any money held for you. A lawyer must promptly pay you the funds you are entitled to and, if you ask, give a full accounting.
4. Handle the court paperwork if a lawsuit is filed. The lawyers file a substitution of counselSubstitution of counsel. A filing, sometimes needing a judge's approval, that replaces one lawyer with another as the lawyer of record in a pending lawsuit. Glossary or similar paperwork, and in some courts a judge must approve it.
5. Tell the insurers who represents you now. The new lawyer usually notifies the insurance adjusters, so every call and letter goes to the right place.
6. Put the deadlines on the new lawyer's calendar. Confirm the filing deadline, any court dates and any open offers or demands with time limits.

Timing near deadlines and trial#

Changing lawyers does not pause anything. The statute of limitations keeps running, and insurers do not have to wait. A new lawyer needs time to read the file, gather missing records and, if needed, prepare a lawsuit. Many lawyers are cautious about taking a case only weeks before a deadline.

Once a lawsuit is filed, the court has its own say. Under the ABA model rule, a withdrawing lawyer must follow any law that requires notice to, or permission from, the court, and a judge will not necessarily move a trial date because the lawyer changed. If your case is close to trial or a key deadline, you may want a new lawyer's view on timing before you act.

If the case is still at the insurance-claim stage, see how long a claim takes for a sense of the usual stages.

If the relationship ended badly#

Fee disagreements after a lawyer is discharged are often worked out between the two lawyers. Some state bars also offer fee-dispute programs; ask yours.

If you believe the first lawyer acted unethically, for example by refusing to return your file or mishandling money, the ABA's consumer guidance says complaints go to the lawyer disciplinary agency in the state where the lawyer is licensed. If you think a mistake cost you part of your claim, that is a question of legal malpracticeLegal malpractice. A lawyer's failure to use the skill and care a reasonable lawyer would use, causing the client a loss, such as missing a filing deadline. Glossary, and a different lawyer can tell you whether you have a claim.