Firing an Attorney That Was Hired on Contingency Basis

[Cincin5000]

My question involves medical malpractice in the state of: ohio

2 separate agreements. Foreclosure case(paid retainer) and accounting malpractice(retainer and on contingency basis and I pay all fees). I paid 2 separate retainers on the foreclosure case and then lawyer wanted another $2000 retainer to file appeal. I did not have the money as the lawyer even knew that I had to borrow the money to get the depositions transcribed for the accounting malpractice case, so I said that I do not want to file an appeal. I get a bill on feb 24th for an extra $2700 on the foreclosure case that dated all the way back to oct 2010(first time he has ever sent me a bill). Why didn't he bill me monthly or why I gave another retainer, I don't know. Anyways, he demanded payment 2 days later. When he didn't get the payment, he started harassing me by basically telling me that he will not do ANY more legal work for people that owe him money. Our deadline on the accounting malpractice case was within a week of him sending me the bill. I know he was trying to get me to pay inflated prices by threatening me on not doing the accounting malpractice work(he is awful on this case anyways...he never even spoke to my expert witness and filed an affidavit for him...I had to correct most of the counter contra thingy as my lawyer missed the key elements of the case in terms of fiduciary duty, standard of care ect). Anyways, I just received a letter from the lawyer saying, 'I will do nothing further on the accounting malpractice case until I receive payment' and 'I am not withdrawing from the case, and I will remain in the matter in order to protect the value of my efforts'. What do I do? Another lawyer would be in my best interest, but will this lawyer still get his third even if he saying that he won't do anything else? I just want to add that it is only March 11 and this bill was sent on feb 24....I haven't even had this bill for 30 days and he demanded and harrassed me about it just 2 days after it was received. How do I go through this lawsuit with him if he is unwilling to do anything on it. 2 separate fee agreements...I feel this is unethical. I even told him that I need to go over the bill as I have a problem with many items on it such as charging me alot of time
to bill me....really?!

[Mr. Knowitall]

If you want to know why your lawyer didn't bill you for work performed at an earlier date, you need to address that question to your lawyer.

If you fire a lawyer you have retained on a contingency basis, he would ordinarily be entitled to payment in quantum meruit for the work he has performed - the reasonable value of work performed. That assessment is typically made after negotiation with the successor attorney, or following a motion before the court in which the litigation occurs prior to the distribution of any settlement or judgment. Sometimes the retainer agreement will include a provision relating to fees in the event of an early termination, so read yours.

[Cincin5000]

He is refusing to withdraw and my other attorney says he cannot move forward until he withdraws, so I am allowed to make a motion to the court asking for his dismissal. I have already tried asking my current attorney if there is an award, I am willing to sign an agreement and put the money into a third party escrow account until we reach an agreement or the outcome of the lawsuit he says he will file against me. He still won't answer any of my questions and is still saying he will do nothing unless I pay that overplayed bill from the other case. He has also refused to give me receipts for all the depositions and return my file. He did state that he will charge me a $150 fee to copy my file if he decides to release it, and I know that he is wrong in charging that as well. Grrrr....I just did research and I am surprised that none of the ethics complaints against him were ever founded. How do I get rid of him? I am so afraid he will settle my case without my permission as he has already submitted an affidavit for me that I said was wrong.

[Mr. Knowitall]

If you want to remove the lawyer from your case and your new lawyer has advised you that you need to file a motion to do that, have your new lawyer file the motion.

[Cincin5000]

Thank you for your response. I took your advice and asked my new attorney if he can file to substitute counsel and he actually said yes, so I ran him down a $5000 retainer. Ummmm....he hasn't done anything yet and my private mediation comprehensive settlement demand letter is due Monday at 5 pm. My old attorney that refuses to withdraw sent me a letter stating that he will be at the private mediation(scheduled April 30th) and that there is nothing that needs to be done before that, so I need to calm down. Well, I am at home trying to write a comprehensive settlement demand letter(court docs only say that it is due along with no more than a 4 page explanation of my demands...states when dependent has to respond by and then I can respond with a 1 page letter). Anyways, since my new attorney hasn't filed anything yet and my old attorney doesn't even know that we are supposed to send something in on Monday, do I send it myself, but if I do, isn't the response going to be sent to my old attorney that I have been trying to get to withdraw? This is so pathetic that I basically have 2 attorneys and I am the one writing this freakin demand letter and have no clue what the heck I am doing! So sorry, I am just venting now....bang head through wall!

[Mr. Knowitall]

Yes, I would expect that documents will be sent to your old attorney. Your new guy needs to get on the ball.

[Cincin5000]

Just in case anyone else has read this thread, i am updating: Wow, so my attorney that refuses to withdraw threatened to sue my new attorney for 'interference with his contractual relationships'(even though i have a signed letter by him urging me to let him take over my divorce case that was already active and I had counsel for)so I am on my own until I can get him dismissed. The judges secretary had never heard of any attorney refusing to withdraw, but she was helpful in teaching me how to efile a motion and forwarded a letter to the judge for me. Now, I just wait and see what happens I guess.

[Mr. Knowitall]

I've never heard of that one, either....

(a) Subject to divisions (c), (d), and (e) of this rule, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if any of the following applies:

(1) the representation will result in violation of the Ohio Rules of Professional Conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;

(3) the lawyer is discharged.

(b) Subject to divisions (c), (d), and (e) of this rule, a lawyer may withdraw from the representation of a client if any of the following applies:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is illegal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation, financial or otherwise, to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;

(7) the client gives informed consent to termination of the representation;

(8) the lawyer sells the law practice in accordance with Rule 1.17;

(9) other good cause for withdrawal exists.

(c) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(d) As part of the termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to protect a client’s interest. The steps include giving due notice to the client, allowing reasonable time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. Client papers and property shall be promptly delivered to the client. “Client papers and property” may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation.

(e) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned, except when withdrawal is pursuant to Rule 1.17.

[Cincin5000]

So, judge asked us to come in this morning to discuss the issues, but after a phone conversation(I am assuming with my fired attorney), the judge decided to grant my motion. Now I just wait for him to sue me and my new attorney(and get my new attorney caught up)...well, and try to get my files, receipts, ect back or else I am screwed on this case. Oh, and try to ignore his rude/offensive letters too. Again, thanks for your responses.

[cmre3456]

Your new attorney needs to handle all of this. If your old attorney thinks he is owed money for prior work, that is entirely different from any right he has to refuse to withdraw.

I recently had a case similar to this where the "old" attorney saw dollar signs and didn't want to lose the possibility of a big contingency payday and he also balked. The new attorney was able to negotiate a fee split if any award was granted and collected. That's one thing your new attorney might pursue to avoid litigation. That would be between the attorneys. Something like that would be in everyone's best interest because that's the most that is likely to come out of a lawsuit if the old attorney prevails for fees. Much more likely, the old attorney would be awarded only fees earned for work performed.

There should be no way the old attorney can keep the case if you fired him. The only issue is "how much if anything did he earn?"

Again you shouldn't even be worrying about this. Your new attorney should with perhaps some help from the court.