I hired a lawyer on a contingency-based contract who appears to have dropped the ball in my case. I'd like to hire a new lawyer, but can the previous lawyer hold me to the terms of the original contract if I win the case with the new lawyer?

Whether your current lawyer can hold you to the terms of the contingency agreement will depend on the laws of your state, as well as your particular situation. Many states follow the Model Rules of Professional Conduct. These rules state that the client can terminate the relationship with the attorney at any time, and the attorney must refund “any advance payment of fee or expense that has not been earned or incurred.”

Quantum Meruit

However, in a contingency fee agreement, often only a retainer fee is given to the attorney. This means that if the attorney has worked on the case for some time, you may end up owing him money for expenses and the work that he has put in on your case, if any. Many states allow an attorney to recover fees from you under a doctrine known as quantum meruit. Under the quantum meruit doctrine, one who renders services may recover a reasonable amount of fees for the services provided. The theory of quantum meruit keeps the person who has received the services from being unjustly enriched by receiving them for free. Under this theory, your former attorney can collect fees for the reasonable value of the legal services rendered to you. He will do this by filing a lien against you, which is generally only paid if you collect money at the end of your case. He will have to show that he actually put work into your case, so if he really did drop the ball, he may not be able to recover anything. However, if you owe him expenses, these may have to be paid whether you win your lawsuit or not.

Firing an Attorney

While your former attorney will generally be able to collect payment from you if you fire him, this does not necessarily mean that you will have to pay two attorneys. When you fire your attorney and hire another one, your second attorney may agree to honor the contingency fee agreement between you and your former attorney. This is especially true if your new attorney thinks the case is worthwhile. This means that at the end of the case, your new attorney will pay the former attorney out of the contingency fee originally agreed upon.

Before you decide to fire your attorney, you should get to the bottom of why you think your attorney is not doing a sufficient job. After all, the issues you are having with the way your case turned out may not be the fault of your lawyer. For example, in a personal injury case, the process of dealing with insurance companies can often be slow, and your attorney may not have any control over the speed of your suit. If you are angry that you lost a motion in court, this may not have been the fault of your attorney, it could just be the reality of your case. The most important aspect of a client-attorney relationship is communication. Make sure you have a conversation with your attorney about your case, and try to work things out before you decide to fire him. Remember that he or she has been there from the beginning of your case, and knows it the best. In the end, there is always the possibility that firing your attorney may make it hard for you to get another attorney, and may weaken your case.