• Justin Hein

Letting Go of Your Attorney

Many individuals--and entities--experience buyer’s remorse after hiring an attorney. And why not – hiring an attorney is a BIG decision, often involving countless hours of research and consultation, and thousands of dollars in retainers and fees. Therefore, the adrenaline of the hire and the thrill of having someone to call, “my attorney”, does not usually last that long. Soon thereafter it is you, your family, and/or your business looking at a large bill and maybe not a lot to show for it.

So, what should you? Well, the first thing is to take a step back and conduct some introspection. Are your present feelings of buyer’s remorse really because of the performance of the attorney or law firm you hired? Or are they the “low” you are experiencing now that you have extinguished the initial “crush” or adrenaline-rush? By what standard are you grading your attorney’s performance? Is it consistent with the goals you and your attorney agreed to at the time of hire? Or is it based on your own, personal, secretive goals that you thought were bound to happen once you retained an attorney or got a chance to tell your side of the story? Because if the problem really is you and not the attorney, then terminating the attorney will likely be just a re-start of a cycle of disappointment.

Once you have determined that there are concrete reasons for you wanting to end the representation, then you need to take another step-back. In so doing, you need to reflect on the consequences of making a change. For example, firing your attorney does not mean you can get out of paying him or her. You still must pay your attorney for services rendered up to the date of the firing, even if you dispute those services or you feel the services were not adequate in some way. And in some cases, attorneys may be holding invoices or working beyond his or her retainer, due to your financial circumstances. So, you could be facing a large expense at the time of termination. Or, possibly even a lien on your property or recovery. Another consequence would be in the event you try to make a change while in active litigation. That can be very costly as you now have to get a new attorney up-to-speed and lose the resource of having someone who knows the nuances of your case.

So while examining the consequences, you need to determine whether the ultimate situation is going to improve by making a change (e.g. facts, allegations, causes of action against you, pre-existing evidence / testimony / admissions, costs, etc.) and the degree to whether that improvement will be versus the cost in making. Keep in mind making the change runs the very real risk that it could do more harm than good (e.g. have you already made 3 attorney changes before this particular judge, are you at a critical juncture in your proceeding or negotiation, etc.). Hopefully, by taking this second reflective moment you can ensure that your decision is responsible and by making it – while justified – you will not be just shooting yourself in the foot or running up additional legal fees.

At this point, you may decide that you need to have a sit-down talk with your attorney. And why not! At one point, you picked them. And now you want a divorce? But have you even got around to telling them that yet? Are you assuming that because you secretly are planning to end the relationship, that they realize what you are thinking? My guess is that they don’t know and, if given the opportunity, will have constructive reasons to explain and defend themselves, in an effort to convince you to continue to work with them. Putting them on notice will also give them a chance to address the behaviors or actions you find unwanted or insufficient. You will be surprised how quick attorneys can change stripes for their client, so long as the change is consistent with being in the client’s best interest.

Once personal and observational reflection takes places and communication with your present attorney has been completed, you should be prepared to make an informed decision. And if the informed decision is still to terminate, well the process to implement is actually quite methodical.

First, take stock of all the actions and work your attorney is presently engaged in. Make sure you identify all matters, understand their current status, and understand what still needs to be accomplished prior to completion.

Second, identify who is taking over. This may be yourself. This may also be a new attorney. This new attorney search should not involve you getting new/alternative advice and counsel (at least, the attorneys should not be providing it if they know that you are presently represented), but rather identifying people you feel can competently handle the matters and legal services you need. Part of that identifying process should obviously include countering whatever it is that is driving your decision to terminate.

Third, review your present fee agreement. Clients, in almost all circumstances, have the right to terminate their attorney at-will. So, anything contrary to that within the fee agreement should be looked at skeptically (and noted for your new attorney). Rather, the primary reason behind the review of the fee agreement should be to determine whether your present attorney laid-out instructions on how to best expedite the transition. This might include instructions on how unearned fees are to be returned, when past due legal fees are due, and how to request refunds for unsatisfactory service. It should also provide instructions on how to request a copy of your file.

Fourth, is drafting the actual termination letter. The letter can be drafted by you or your new attorney. The letter should be concise and to the point – no need to air dirty laundry. Rather, it should inform the attorney that you are terminating their representation of you immediately and that all work should cease immediately. Furthermore, the letter should instruct the attorney to return unearned fees and on how you want your file to be delivered or made available. If you are presently in litigation, the letter should explain how you plan to inform opposing counsel and the tribunal of your change in representation. Finally, the letter should communicate to the attorney a reasonable date by which they are required to comply. While the termination can be communicated by any method, we recommend sending via certified, registered, or priority mail.

A concise communication focused on handling the actual transition is the best way to handle the termination of the attorney. That limits the communication to the meat-and-potatoes of what you are attempting to accomplish. It also directs both you and your – NOW – former attorney to deal with the present and future, instead of dwelling on an unpleasant past. Hopefully, such a tactic will keep the matter from devolving into unprofessional behavior.

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