Fee Disputes, Mistakes and Official Help
Firing Your Lawyer: What Happens to Fees, Retainers and Your File
You can change lawyers at almost any time. Learn what you owe the first lawyer, how contingency fees are split, attorney liens, retainer refunds and getting your file.
You can generally fire your lawyer at any time, for any reason. What you owe depends on the fee arrangement: under hourly billing you pay for work done up to that point and should receive any unearned retainer back; under a flat fee you may be entitled to a partial refund; under a contingency agreement the first lawyer usually has a claim to a reasonable fee for the work done, typically paid out of any eventual recovery rather than up front. Your new lawyer can help sort this out, and in most cases the total fee should not double just because you switched.
Changing lawyers mid-case has costs, including time for the new lawyer to learn the file, so it is worth trying to fix the problem first. But if trust has broken down, the rules protect your right to choose counsel.
Your rights when you end the relationship
Under rules based on ABA Model Rule 1.16:
- A lawyer must withdraw if discharged by the client.
- Once a case is filed in court, a change of lawyer may require the court's permission or a formal substitution of counsel, and the court can refuse if the change would cause unfair delay.
- On termination, the lawyer must take reasonable steps to protect your interests, including giving reasonable notice, allowing time to find another lawyer, surrendering papers and property you are entitled to, and refunding any advance payment of fees or expenses that has not been earned or incurred.
The lawyer may keep papers only to the extent permitted by other law, which is where attorney liens come in.
What you owe, by fee type
| Fee arrangement | What the first lawyer is usually entitled to | What you should get back |
|---|---|---|
| Hourly | Fees for work performed through discharge, per the agreement | Unearned retainer balance |
| Flat fee | The value of work completed, depending on the agreement and state rules | The unearned portion |
| Contingency | A reasonable fee for the value of services (often called quantum meruit), usually payable from the recovery | Not applicable until there is a recovery |
| Limited scope | Fees for completed tasks | Prepaid amounts for tasks not done |
Worked example: hourly matter
Illustrative figures only. A client paid a $5,000 deposit. The lawyer billed $3,200 before being discharged. The trust account should hold 5,000 - 3,200 = $1,800, which should be refunded promptly once the final invoice is issued. If the client disputes $600 of the billed work, that amount can remain in trust pending resolution while the undisputed $1,200 is refunded.
Contingency cases: how the fee is split
When a contingency client changes lawyers, the first lawyer usually cannot claim the full percentage, because the client has a right to discharge. In many states, the discharged lawyer can recover the reasonable value of the work performed, often only if and when there is a recovery. The new lawyer is then paid under the new agreement.
In practice, lawyers often resolve this between themselves by dividing a single fee. For example, illustrative figures only:
- Settlement: $120,000
- New lawyer's agreement: 33⅓% = $40,000 total fee
- First lawyer's claim for work done: resolved at $12,000, paid from the $40,000
- New lawyer keeps $28,000; the client's share is unchanged
Whether the total can exceed one fee depends on the agreements and state law. Ask the new lawyer, in writing, how the first lawyer's claim will be handled and whether it will come out of their fee or your share. Use the contingency fee calculator to check the numbers.
Attorney liens
Two types of lien may affect you:
- Charging lien. A claim on the recovery in the case for fees owed. It is common in contingency cases and is the usual mechanism for paying a discharged lawyer.
- Retaining lien. A claim to hold your file until fees are paid. Many states limit or restrict retaining liens, especially where holding the file would harm the client's case. Rules vary considerably.
If a former lawyer refuses to release your file, ask your new lawyer to request it and, if needed, contact your state bar's ethics hotline or client assistance program.
How to change lawyers smoothly
- Hire the new lawyer first, so there is no gap in representation, especially if deadlines are close.
- Send a short written notice to the first lawyer ending the representation and asking for your file and a final invoice.
- Let the new lawyer handle the substitution paperwork with the court.
- Get a final accounting of any trust balance and refund.
- Sign a new fee agreement that addresses the first lawyer's claim. See the guide to written fee agreements.
When the lawyer withdraws instead
A lawyer may withdraw for reasons such as nonpayment after warning, a conflict of interest or a breakdown in the relationship, subject to court approval in pending cases. The same refund rules apply. If you think the lawyer withdrew improperly or kept money they did not earn, see the guide to legal fee disputes and the guide to reviewing a legal bill.
Frequently asked questions
Do I need a reason to fire my lawyer?
No. Clients can generally discharge a lawyer for any reason, though you remain responsible for fees properly earned.
Will my new lawyer charge more because someone else started the case?
Possibly, because they need time to learn the file. In contingency cases, ask how the total fee will be handled so you are not paying two full percentages.
Can my old lawyer keep my file until I pay?
It depends on state law. Some states allow limited retaining liens; many restrict them when the file is needed to protect your case.
How quickly must my retainer be refunded?
The rules require prompt refund of unearned funds. If the lawyer delays, request it in writing and contact your state bar if necessary.
Sources
- American Bar Association — Model Rules 1.15 and 1.16 on terminating representation
- The State Bar of California — client file and fee arbitration information
- New York State Unified Court System — fee dispute program and client rights
