If you are unhappy with your legal representation, you have the right to change lawyers. However, before doing so, it is worthwhile to at least meet with your lawyer to try and address your concerns. Often, the problem stems from a lack of communication, miscommunication, or disagreement over the lawyer’s advice or opinions about the case. Usually, a meeting will clear the air and the problem will be solved. Sometimes, however, the relationship is beyond repair and the client is determined to find another lawyer.
Changing Lawyers in an ICBC Claim
Switching lawyers in an ICBC claim can be a little complicated because most lawyers handle such cases on a contingency fee basis. This means their entitlement to fees only accrues once the case is concluded. So, if a lawyer is fired before completion, the question arises as to how, and when, the discharged lawyer gets paid for services rendered and disbursements incurred.
The usual practice in B.C. is for the new lawyer and former lawyer to agree on a fee split after the case is done and the amount of the award is known. On occasion, a dispute arises between the lawyers regarding their relative share of the fee. If they cannot come to terms, they can apply to court (a Registrar’s Hearing) to resolve the dispute. This is rarely necessary.
Some contingency fee agreements stipulate how the lawyer’s fee will be determined, and when it will be paid, if the client changes lawyers. (Typically, the fee will be based on an hourly rate, to be paid immediately upon termination). However, such provisions are generally unenforceable. Again, this is because the right to a fee only arises after a settlement/judgment is obtained, and the amount of the fee can only be determined once the award is known.
If you change lawyers, you should not have to pay both lawyers for their services. Instead, both lawyers will share in the fee charged under the new lawyer’s contingency fee agreement. In some cases, the succeeding lawyer tells the prospective client to first “settle matters” with the former lawyer, or “deal with the (former lawyer) on your own,” before taking over the file. You must never agree to such an arrangement, as it will mean you will be paying more in legal fees than you should.
As for disbursements, normally the new law firm will pay the discharged firm’s disbursements up front, as a condition of transferring the file. In rare cases, the new law firm is unable or unwilling to assume the risk of carrying all the disbursements, or there is a dispute about the amount or reasonableness of the disbursements. If this happens, and the lawyers cannot come to a suitable arrangement for payment or security of the disbursement bill, either side can apply to the court for directions.
If you are planning to change lawyers, make certain you have a clear understanding of how the new lawyer proposes to deal with the discharged lawyer’s bill for fees and disbursements before you sign up.