Can I Fire My Lawyer Before Trial?

Your right to switch does not end when a trial date is set

Clients can discharge their lawyers at any stage of an injury case, including after a trial date is on the calendar. California’s Fracasse v. Brent, Texas’s Hoover Slovacek v. Walton and Washington’s Karstetter v. King County Corrections Guild all recognize that right.

What changes close to trial is that you are inside a court case with its own schedule. The judge, the defense and the court calendar all have interests too. Changing lawyers is still allowed. Getting extra time to prepare is a separate question, and the answer is often no.

How the change is made in court

Before a lawsuit is filed, a letter is enough. After filing, the court record has to show who represents you.

California. Under Code of Civil Procedure § 284, a lawyer can be changed by a filed consent signed by the client and the lawyer, or by court order on application of either one. The usual consent form is the MC-050 Substitution of Attorney. If the old lawyer will not sign, the new firm can ask the court for an order. Notice goes to the other side under § 285.

Texas. Under Rule 10 of the Texas Rules of Civil Procedure, a lawyer withdraws by written motion. When a new lawyer is coming in, the motion lists the new lawyer’s contact information and bar number, states that the client approves, and states that the change is “not sought for delay only.” The judge signs an order.

Washington. Civil Rule 71(d) lets a new lawyer come in through a Notice of Withdrawal and Substitution signed by both lawyers. RCW 2.44.040 also addresses changing attorneys in a pending case.

Will the judge move my trial date?

Do not count on it. Each state makes continuances hard to get, and a change of lawyers alone often is not enough.

• California: Rule of Court 3.1332 says trial dates are firm and continuances are disfavored. Substitution of trial counsel can support a continuance “only where there is an affirmative showing that the substitution is required in the interests of justice.”
• Texas: Rule 253 says absence of counsel is not good cause for a continuance when a case is called for trial, except in the court’s discretion on cause shown.
• Washington: continuances are up to the judge. A substitution signed by both lawyers under CR 71 does not move the trial date by itself.

Judges are more open to a short continuance when the reason for switching is serious and documented, such as a lawyer who has not prepared at all, and when the request comes early. They are less open when it looks like a delay tactic or arrives the week of trial.

Timing: months out versus days out

Several months before trial. This is the workable window. A new firm can review the file, check which experts were disclosed, see what discovery is finished and prepare. Expert and discovery deadlines usually fall well before the trial date, so even a few months out, some of them may be close or already passed.

A few weeks before trial. Harder, though sometimes possible. A new lawyer has to decide quickly whether the case can be tried as it stands. Some firms will not take a case that close, and some will ask the court for a continuance knowing it may be denied.

The day of trial or during trial. You can still discharge a lawyer, but the judge can refuse to delay the case. You could end up trying the case yourself or with a lawyer who has had no time to prepare. If you are unhappy that late, talk to a new firm before you say anything in court.

What a new trial lawyer needs from the old file

A case close to trial has a long paper trail. The new firm needs the pleadings, all discovery sent and received, deposition transcripts, expert reports and disclosures, the defense medical exam report, and any court orders. The old firm must turn over the file. California rule 1.16(e)(1) requires release on request whether or not fees are paid. In Texas, Ethics Opinion 411 says a lawyer may not hold a file in a way that would foreseeably prejudice the client, which matters a great deal with trial approaching.

The new firm will also check the court’s docket for upcoming hearings and the final status or pretrial conference date. If you have any letters or emails from the court, bring them to the first meeting. Our page on getting your case file from your old lawyer explains what to ask for.

Fees, costs and what we can take on

Taking over a case near trial is real work, and it does not change your fee with us. Your former lawyer’s fee for work done is paid from our share of the fee, never charged to you on top. Costs the old firm spent on the case, such as deposition transcripts or expert fees, are normally repaid from the recovery, the same as on any case. You owe us no fees or costs if there is no recovery.

In Texas the reason for the switch can affect the old lawyer’s fee claim. Under Mandell & Wright v. Thomas a lawyer fired without good cause can claim the contract fee, subject to Hoover Slovacek. With good cause, Rocha v. Ahmad limits the claim to the reasonable value of the work done. Our Texas cases are handled by our Texas-licensed attorneys, Joyce Ondich and John Efstathiou.

We will be straight with you about whether there is enough time to take your case before trial. If the case already settled and you signed a release, it is generally over and we cannot take it. To see how the process works from start to finish, read our switching lawyers guide, or call us at (310) 552-6959.

Sources

1. Fracasse v. Brent (1972) 6 Cal.3d 784 (scocal.stanford.edu)
2. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557 (Tex. 2006) (CourtListener)
3. Karstetter v. King County Corrections Guild, 193 Wn.2d 672 (2019) (courts.wa.gov, PDF)
4. Cal. Code Civ. Proc. § 284
5. Judicial Council Form MC-050, Substitution of Attorney (Civil)
6. Cal. Code Civ. Proc. § 285
7. Texas Rules of Civil Procedure (Rules 10, 11 and 253) (txcourts.gov, PDF)
8. Wash. Superior Court Civil Rule 71
9. RCW 2.44.040
10. Cal. Rules of Court, rule 3.1332 (trial continuances)
11. California Rules of Professional Conduct (State Bar of California, PDF)
12. Texas Professional Ethics Committee Opinion 411
13. Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex. 1969) (CourtListener)
14. Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App. San Antonio 1984) (CourtListener)