If you have a workman’s comp case and you’ve started to doubt your current lawyer’s skills or strategy, you may wonder if you can replace him or her with someone new. The good news is the answer is yes. You can replace your workman’s comp lawyer, and you should not have to pay additional contingency fees to do so. A “contingency fee” is the percentage of your total settlement your workman’s comp lawyer receives for working on your case. In many states, the most your attorney can legally charge you is 20% of your settlement.
However, there are things you should know about this process ahead of making a switch. We recently received a question about this situation from a reader:
Question: “I’ve read you must fire your lawyer first if a retainer is in place before hiring a new attorney. Well, I’m having a hard time finding a new workman’s comp lawyer for my case. I think the law I read says my new lawyer would have to split legal fees with the old attorney. Is this true? Could this be why I can’t find a new lawyer willing to take over my workman’s comp case?”
Answer: Yes, this is true. And, it might by why this reader is struggling. It is best to find a replacement attorney first before terminating your original lawyer.
Why Would Someone Switch Lawyers?
The three main reasons clients tend to replace lawyers are:
- Poor or nonexistent communication.
- Lack of trust.
- Disagreement on case strategy.
If you experience any of these with your current workman’s comp attorney, then it might be time to move on.
For example, if your lawyer misses a filing deadline with your case – or isn’t returning your calls within two business days – well, that would frustrate anyone. If your concerns are more serious and you’re worried that your lawyer is mishandling your case or behaving unethically, then you can reach out to your state’s Bar Association.
For less serious concerns, you can simply replace your lawyer. Follow the steps below to complete that process.
5 Steps to Changing Your Workman’s Comp Lawyer
1. Have a meeting with your original workman’s comp lawyer to discuss your concerns.
Ask them to explain their planned next steps and the date they expect your case to resolve.
2. If this meeting does not resolve your issues, reach out to a new attorney in our network and explain your situation.
Be honest about the fact that you already have a lawyer you’re looking to replace — and why.
IMPORTANT: Don’t switch simply because a new attorney promises to get you more money for your claim.
Ask about the new lawyer’s planned strategy for your case, their expected timeline to resolve it, and how often you can expect them to communicate with you. Hire an attorney who has plenty of experience handling your specific type of case. Do not switch more than once (this is called “lawyer shopping”), or the judge on your case may not grant an extension. This can prevent your new attorney from being able to do a good job. This could also lower your chances of winning a settlement.
3. Notify your original lawyer in writing saying you no longer require their services and request a copy of your complete file.
Your new lawyer can assist with both writing and sending this letter. Your new lawyer also must send notice to the at-fault party’s insurance company. This is so that company can redirect inquiries to the new firm instead of your original attorney.
IMPORTANT: It is illegal for your original attorney to tell you that you cannot get out of your contract to employ that lawyer.
4. If you are changing lawyers after your case was filed in court, you will likely need to get the judge’s approval to do so, depending on the rules of the state where you live.
Your new lawyer will file your request to change representation with the Workers’ Compensation Commission, which is usually approved. This is called a “motion to substitution.”
5. Let your new workman’s comp lawyer negotiate how to split the contingency fee with your original attorney.
You don’t have to pay a higher percentage of your settlement just because you switched. However, according to the American Bar Association Journal, the original lawyer may be entitled to a portion of the fee, called “quantum meruit,” for the value added to the case.
IMPORTANT: Ask your new lawyer for documentation of all legal costs. If you agree to pay for these costs upfront with a retainer, you should receive a refund for any unused money after your case closes.
The fees paid to both attorneys will not affect your recovery amount because as a client, you will never pay more than one contingency fee. If a dispute arises, your new lawyer must retain the funds in the client trust account pending your claim’s resolution.
Changing Lawyers May Cause a Delay
It is wise to be patient and expect delays if you choose to replace your workman’s comp lawyer. Here’s why:
- Your new lawyer will need to spend time reading everything in your file and learning about your case.
- The new lawyer may need to talk to your doctors, family members, and any witnesses from your former workplace.
- They will likely ask the judge for an extension in order to pursue a new case strategy.
Switching your workman’s comp attorney can be stressful, but it is possible. Many people have been in your shoes.
If you need help, talk to an experienced workers’ comp attorney for free over the phone. Having an experienced lawyer file your paperwork makes the process much easier. To speak with a local attorney in our network about your situation and get claim help by phone, click the button below now:
Laura Schaefer is the author of The Teashop Girls, The Secret Ingredient, and Littler Women: A Modern Retelling. She is also an active co-author or ghostwriter of several nonfiction books on personal and business development. Laura currently lives in Windermere, Florida with her husband and daughter and works with clients all over the world. Visit her online at lauraschaeferwriter.com and linkedin.com.