The Plaintiff’s Right to Change Attorneys

By Lauren E. Adler

December 28, 2018

Even after a client has hired an attorney, they have the right to fire them.  It’s an interesting situation that gives rise to some questions, such as: (1) Who has the right to possession of the client’s file?; and (2) Is the former attorney entitled to any compensation?  Let’s explore:

I.  Client file

Washington law and common practice is that the client’s file rightfully belongs to the client.  This makes practical sense because the client is the one who pays for the case and thus the file.

Formal opinion number 53 of the Washington State Bar Association states:

Client’s Right to Files Office copies of probate and court files and correspondence pertaining thereto, as distinguished from papers and documents delivered to an attorney by his client or paid for by him, are the property of the attorney. But, in view of the fact that the client has paid for the work represented by the office files, and in view of the professional relationship itself, a client on his request is entitled at his cost, if any is involved, to have copies of all of the papers and correspondence in the file. This is so especially if the employment is terminated before completion, and the client, after discharging his obligations to the attorney, desires to employ another lawyer in the pending matter and to turn a copy of the file over to him. A lawyer’s duty extends to protecting the interest of the client in all matters in which he has represented him, even though employment is terminated.

Some attorneys will withhold their handwritten notes from the file on the grounds that this is privileged work product.

II.  Payment of attorney’s fees

Normally payment to an attorney in a personal injury case is based on a “contingency fee,” which means that the attorney is paid only once the case is resolved, for an agreed-on portion of the settlement.  Usually this is one-third of the overall settlement.

Sometimes the fee agreement will specify that when the attorney-client relationship ends prior to the case concluding, the contingency fee is translated into an hourly fee owed to the attorney for their hours worked.  In that case, the client owes the attorney payment for whatever hours were worked on the case.

Often, though, the payment issue can be resolved between the client’s new attorney and old attorney. When there is a new attorney hired on the case, the fee will usually remain the customary one-third of the overall settlement, and the two attorneys will share in that one-third fee.  The discharged attorney must wait until the conclusion of the case to determine how much of the fee is reasonably owed, based on actual time and services provided to the client.

Most new attorneys will heavily consider the value of a case before agreeing to take it on from a prior attorney, because they know a former attorney has a claim to the ultimate fee recovered.  So for example, if a case settles for $30,000.00 and the attorney’s fee is $10,000.00, and the former attorney claims a large majority of hours of service in the case, it may not make sense for a new attorney to get involved.

On the client’s part, changing attorneys is not a small decision and should be considered carefully.  If the client is concerned about how the attorney is handling the case, the client should make all efforts to communicate those concerns to the attorney early on, and find a resolution if possible.  Otherwise, it might be too late and the client will have a hard time finding another attorney to come on board.

When we are asked to consider taking over a case for someone who is already represented, our goal is to point the client in a direction that promotes a fair and effective resolution of the claim.   We think we think about a few things to this end:

  1. The client’s right to quality representation and service by the law firm handling their case;
  2. The client’s right to discharge their attorney at any point in time;
  3. Whether the quality of representation the client received from the first attorney would impact a second attorney’s case strategy and ability to bring about a fair resolution of the claim; and
  4. The value of the case, in light of the first attorney’s lien for time spent.

Based on these considerations, we have a few suggestions for the client, including: making efforts to resolve their issues with the first attorney, handling the claim on their own, or discharging the old attorney to hire a new one.