How to Switch Personal Injury Lawyers in California

California lets you fire your lawyer at any time

The leading case is Fracasse v. Brent, decided by the California Supreme Court in 1972. It held that a client may discharge a lawyer at any time, with or without cause. The court also said a fired contingency lawyer can’t collect the full contract percentage. The lawyer is limited to the reasonable value of the work, and the claim only arises if the client actually recovers. The court pointed to the risk of a client paying “double contingent fees” as one reason for that rule.

Once you fire your lawyer, the California Rules of Professional Conduct take over. Rule 1.16(a)(4) says a lawyer must withdraw when discharged. Rule 1.16(d) requires the lawyer to take reasonable steps to avoid harm to you on the way out.

Look at your fee contract too. Under Business and Professions Code section 6147, a California contingency contract has to be in writing and include certain terms. If it leaves them out, you can void it, and the lawyer is then limited to a reasonable fee.

First, try raising the problem in writing

California lawyers have a legal duty to keep clients informed. Business and Professions Code section 6068(m) requires them to respond promptly to reasonable status questions and to tell you about significant developments. Rule 1.4 of the ethics rules says much the same thing.

A short email works well. Ask where the case stands, what the next step is and when it will happen. Give it a week. A good lawyer who simply fell behind will usually answer, and you may decide to stay. If the silence continues, you now have a dated record, which helps if there is ever a fight over the fee.

For more on this, see our page on what to do when your lawyer won’t call you back.

Changing attorneys after a lawsuit is filed

Before a lawsuit, no court is involved. Your new firm notifies the old firm and the insurers by letter, and the change is done.

After a lawsuit is filed, the court file must show who your lawyer is. Code of Civil Procedure section 284 allows the change in two ways. The first is a consent signed by you and filed with the court. The second is a court order, used when someone won’t sign.

The consent is usually done on Judicial Council form MC-050, Substitution of Attorney—Civil. You sign it, the new lawyer signs it, and the former lawyer signs to consent. The new firm files it and serves it on the other parties, which also covers the written notice to the other side that section 285 requires. Most old firms sign within days. If one refuses, the new firm can ask the judge for an order.

If a trial date is close, the judge will care about delay. Read firing your lawyer before trial before you act.

Getting your file from your old lawyer

California is clear on this point. Rule 1.16(e)(1) says that when the representation ends, the lawyer must release all client papers and property at your request. This applies whether or not the lawyer has been paid. An unpaid fee is no excuse to hold your file.

A complete personal injury file usually includes medical records and bills, photos, the police report, letters with the insurance adjuster, any recorded statements and the demand package if one was sent. In a lawsuit it should also hold the pleadings, discovery and deposition transcripts. We ask for all of it in writing and follow up until it arrives.

More detail is on our page about how to get your case file from your old lawyer.

What happens to the old lawyer’s fee and lien

A fired lawyer often files a notice of lien in the lawsuit or sends one to the new firm. That notice is a claim, and the amount is still open to dispute. Under Fracasse the claim is for reasonable value, and it only comes due if there is a recovery.

In Carroll v. Interstate Brands Corp., a California appeals court held that a former lawyer has to bring a separate lawsuit to establish and enforce that lien. It is not decided inside your injury case. In practice, most of these claims are worked out between the two firms.

At settlement, the ethics rules protect your share. Rule 1.15 says money that is truly in dispute stays in the trust account until the dispute is resolved, and money that is not in dispute must be paid out promptly. A fight between lawyers should not hold up your portion.

Here is what that means for your wallet when you come to us. Your fee does not go up because you switched. Whatever share the former lawyer is owed comes out of the fee we earn, so only one fee comes out of your recovery. The costs your old firm advanced, such as filing fees or records charges, are usually repaid from the settlement, as costs are on any case. If we don’t recover anything for you, you owe us nothing.

For how the split usually works, read about the old lawyer’s lien after switching.

If you and your old lawyer disagree about money

California runs a Mandatory Fee Arbitration program for fee disputes between clients and lawyers. Under Business and Professions Code section 6201, a lawyer must notify a client of the right to arbitrate before suing the client for fees, and the client can choose to use the program. Local bar associations run most of the hearings. The State Bar’s fee dispute page explains how to start.

If you paid your old lawyer anything up front, Rule 1.16(e)(2) requires a refund of any part of it that was not earned. That is rare in injury cases, since most are taken on contingency.

California deadlines don’t stop when you switch

Changing lawyers does not pause any deadline. Most California injury claims must be filed in court within two years under Code of Civil Procedure section 335.1. A claim against a city, county or state agency is much shorter. Under Government Code section 911.2, a written claim usually has to be presented within six months. If your accident involved a public bus, a city vehicle or a sidewalk, tell us that on the first call.

There is one firm limit. If you already signed a release and the case settled, we can’t step in. A signed release generally ends the claim under Civil Code section 1541. If you haven’t signed yet, see firing your lawyer after settlement.

Switching lawyers by type of case in California

The basic steps are the same for every case. What changes is what the new lawyer must catch up on. Pick your case type:

• Switching car accident lawyers in California
• Changing truck accident lawyers in California
• Switching motorcycle accident lawyers in California
• Changing lawyers on an Uber or Lyft accident case in California
• Switching slip and fall lawyers in California
• Changing dog bite lawyers in California
• Switching wrongful death lawyers in California

Call (310) 552-6959 or contact us for a free review in English or Spanish. You can also read more about our California injury practice.

Sources

1. Fracasse v. Brent (1972) 6 Cal.3d 784 (scocal.stanford.edu)
2. California Rules of Professional Conduct (rules 1.4, 1.15, 1.16) (calbar.ca.gov)
3. Cal. Bus. & Prof. Code § 6147 (leginfo)
4. Cal. Bus. & Prof. Code § 6068(m) (leginfo)
5. Cal. Code Civ. Proc. § 284 (leginfo)
6. Cal. Code Civ. Proc. § 285 (leginfo)
7. Judicial Council form MC-050, Substitution of Attorney—Civil (courts.ca.gov)
8. Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168 (Justia)
9. Cal. Bus. & Prof. Code § 6201, Mandatory Fee Arbitration (leginfo)
10. State Bar of California, Resolve a fee dispute
11. Cal. Code Civ. Proc. § 335.1 (leginfo)
12. Cal. Gov. Code § 911.2 (leginfo)
13. Cal. Civ. Code § 1541 (leginfo)