Can You Change Your Attorney? When it Makes Sense and Mistakes to Avoid

Unhappy with your personal injury attorney? See how you can switch lawyers without extra fees and unnecessary delays.

There are over 1.3 million lawyers in the United States. Despite so many choices, you may find yourself represented by a lawyer you no longer like or trust. At what point can you change lawyers?

Switching attorneys does not mean paying double legal fees. Typically, your current lawyer and new lawyer will split your previously agreed-upon fee according to the percentage of work each of them did on your case.

Depending on the stage of your case, deciding to switch lawyers might cause a delay. However, getting proper compensation for your injury is essential and you need to be comfortable with the attorney representing you.

You only have one case and it’s an incredibly important part of your life. You need to know your rights if faced with a bad attorney relationship and what to consider when changing attorneys.

When It Makes Sense to Switch Attorneys

There are three important factors present in all good attorney-client relationships. These include maintaining good communication, building a foundation of trust, and agreeing on a strategy for your case.

If your current attorney isn’t holding up their side of the relationship, it might be time to look for a replacement.

Attorney-Client Communication

An attorney’s failure to communicate with their client is one of the biggest reasons people change lawyers. Ideally, you and your lawyer will have set expectations for updates and returning calls during the initial free consultation.

Most good attorneys will keep you informed about the progress of your case and will return your phone calls and emails in a timely manner.

Timely doesn’t mean immediately. Expect to hear from your attorney or a knowledgeable paralegal within one or two business days. Paralegals are a great resource for updates, and may relay messages from your attorney.

If you aren’t getting a straight answer from anyone in your attorney’s office, or repeated calls are not returned, there’s a problem.

Build a Foundation of Trust

Trust is another key part of your relationship with your attorney. Do you trust your attorney to handle your case in an effective and professional manner?

Your attorney is like your doctor. You’re not trained in the law, like you’re not trained in medicine, so you must rely on an expert to give you good advice and help you handle your problem.

Behaviors that can damage trust in your attorney:

  1. Unprofessional conduct
  2. Failure to communicate
  3. Missed deadlines
  4. Repeated extensions of time
  5. Inconsistent advice
  6. Lack of experience with your case type

Trust in your personal injury attorney is essential. If you’ve lost trust in your attorney, it’s most likely time for a change.

Discuss Case Strategy

Finally, you and your attorney must agree on the strategy for handling your case, especially when it comes to deciding on a reasonable settlement amount. This is related to trust.

An experienced attorney can help you understand any issues or problems with your case and what your injuries are reasonably worth.

If you strongly disagree with your attorney’s advice, however, then it might be time to get a second opinion from another lawyer.

Example of Losing Trust in an Inexperienced Attorney

Valerie’s husband was killed when a tree in a shopping mall’s parking lot fell during a storm and landed on his car.

Valerie was referred by a friend to an attorney, but the attorney had only limited experience in personal injury cases.  The attorney quickly filed a lawsuit and after a short investigation recommended that she settle the wrongful death case for $150,000.

Valerie was unhappy with that recommendation and lost trust in her attorney. She decided to call another lawyer with significant experience in wrongful death cases. The new attorney agreed to handle Valerie’s case. She sent a letter to her old attorney discharging him.

Valerie’s new attorney aggressively pursued the case. He found a local tree service that several months before the storm had looked at the same tree that fell on Valerie’s husband.

The tree service at that time told the mall manager the tree was dead and needed to be taken down before it fell on someone. The mall manager decided it cost too much to take the tree down, so she left it.

After this new information was presented to the mall’s defense attorneys, Valerie settled her case for over $1 million – much more than her first attorney had recommended.

Attorney Ethics and Professionalism

If you have concerns about whether your old lawyer was acting unethically or unprofessionally, you should consider making a complaint to your state’s Bar Association.

The State Bar Association controls attorney licensing in each state and may fine or sanction attorneys guilty of wrongdoing, in addition to suspending or revoking their license to practice.

File such a complaint only if you have serious concerns that your attorney may have committed ethical violations, not because you’re frustrated or had personality differences. Again, this is something you can discuss with your new attorney.

5 Mistakes to Avoid When Changing Lawyers

If you’re unhappy with your attorney, first ask yourself if your expectations are realistic. If you aren’t sure, ask. When you’ve decided you want a different attorney to handle your injury case, take your time and avoid costly mistakes.

1. Making a Hasty Decision to Switch

If you’re unhappy with your attorney or have concerns about their work, but you’re not sure you want to change, consider having a face-to-face meeting to address your concerns.

Ask your attorney about the steps going forward with your case and the approximate dates when each step will be completed. Your attorney can only push your case as hard as procedural rules allow. If your case is delayed for no good reason, however, ask yourself if you trust your attorney to change. If not, move on.

2. Firing Your Attorney Before Hiring a New One

Don’t discharge your current attorney before you’ve found a replacement. You need to know that any upcoming deadlines will be met and that your case will stay on track.

As you go through the process of choosing a new lawyer to handle your claim, be upfront that you are already represented by counsel and want to change. Explain the issues you’re having with your current attorney without being overly angry or critical.

3. Falling for Big Promises

Be wary of any attorney who makes big promises about your potential compensation, especially during your first meeting when they don’t yet have all the facts about your case. If they say you can get a lot more than your current attorney is estimating, ask them to explain.

The one promise you do want to hear is that your attorney will give your case their full attention, and will work tirelessly to get you the compensation you deserve.

4. Hiring Another Inexperienced Attorney

If your current attorney is dropping the ball because they’re in over their head, don’t hire another attorney who has never taken a personal injury case to trial. Find an attorney with years of experience handling cases like yours.

Some injury cases, like those related to medical malpractice or product liability, require highly specialized knowledge on the part of the attorney.

5. Lawyer Hopping or Shopping

It shouldn’t hurt your claim to change lawyers, even if you change later in the process. However, if you are on your third or fourth attorney since the inception of your injury case, it could look like you’re “attorney shopping” because you don’t have a good case.

Judges are less likely to grant another new lawyer an extension to allow them time to get up to speed on your case if you’re on your third or fourth representative.

Splitting Attorney Fees and Legal Costs

The fact that your previous attorney may be entitled to a portion of the contingency fee when your new attorney recovers your compensation doesn’t mean you’ll be losing money.

Contingency Based Legal Fees

Your current injury attorney is most likely representing you on a contingency fee basis. Hiring a new attorney will not eliminate your old attorney’s right to a portion of the fee when you recover compensation for your injury, especially if you make the change in the middle of a case.

Some attorneys will give up their right to a portion of the contingency fee when discharged mid-case, but others will not. This is something your new attorney will consider when deciding whether to take your case.

Whether and how to split the contingency fee is ultimately a matter between your old and new attorneys. Nevertheless, it’s something you should discuss with your new attorney.

Legal Expenses and Costs

If you’ve given your current attorney a retainer or money to use for legal costs, you’re entitled to a refund of the unused funds. Ask for a breakdown of all the expenses and costs, and for a refund of any unused money right away.

Replacing your attorney may increase some of your costs for legal services. For example, the court fee for filing a motion to change your attorney of record.

Changing Attorneys Before vs After Filing a Lawsuit

Before Filing a Lawsuit

Changing attorneys before your case is filed is much easier than changing after the lawsuit is underway. If you already know you want a new lawyer, write your current lawyer a letter explaining that you no longer need their services. You don’t have to provide a specific explanation, but can if you want to.

In that same letter, ask for a complete copy of your file. You’re entitled to get back any documents or other evidence you’ve previously given the attorney. You’re also entitled to any documents the attorney has created for your case.

Since you should not discharge your current attorney before you have found a new one, your new lawyer may help you with this letter. Your new counsel will also notify the at-fault party’s insurance company to redirect inquiries to them.

That’s it. It’s a simple process but you need to do it in writing.

After the Lawsuit Has Started

You have the right to change lawyers even after your lawsuit has been filed. But there are a few more things to consider if you’re changing attorneys once the lawsuit is underway:

1. Check the Rules

The rules governing lawyers in your state may require that you get approval from a judge to discharge your current attorney and add a new one. Your new attorney can file a substitution of counsel request with the court.

Judges usually give their approval to such a change. But if your case is close to trial and changing lawyers could cause a delay, a judge might not allow the switch.

2. Expect Delays

Changing personal injury lawyers after your case is filed might cause a delay. Your new lawyer will need to spend time getting fully informed about your case so they can give you their best legal advice. This may include contacting your doctors, family members, and any witnesses to hear firsthand what they have to say.

If your case needs an expert witness, your new lawyer will have to start the search process. Your lawyer will need to read all the pleadings and discovery already exchanged by the parties. If there are interrogatories or document requests you need to answer, your new attorney may have to get an extension of time to get those ready.

There’s a lot for an attorney to do when taking on a case already in progress. Be patient while your new attorney does everything necessary to prepare to represent you. Still, if your relationship with your current attorney is unacceptable, this delay should be worth it.

Changing Attorneys Questions

Bobby Jenkins, Esq. is an experienced civil litigator with over 20 years’ experience representing plaintiffs in personal injury cases. He is a member of the North Carolina State Bar and admitted to the U.S. District Court. Bobby has practiced extensively in the areas of auto accidents, medical malpractice, and wrongful death. He also teaches as... Read More >>