This question often comes up because most people who hire an attorney do not interact with an attorney on a daily basis. The relationship is further complicated by the special relationship of trust that should exist between an attorney and a client. Although you are paying your attorney, the attorney-client relationship is not the same as a normal employee-employer relationship.
Below, we list some pointers about what is normal and what is not normal when it comes to interactions with your lawyer.
(1) Attorneys are fiduciaries to their clients.
What does this mean? A “fiduciary” is an agent or representative of a client that owes a very high standard of care to their client. In fact, the standard imposed by law on any fiduciary (attorneys included) is that the attorney must put the interests of their client ahead of their own interests. This means your attorney is required by law to do what is best for you, even when it may not be in the best interest of the attorney.
What this means for you as a client is that you should never feel like your attorney has an adverse interest to you. This often comes up in the context of a personal injury lawsuit. In the average personal injury lawsuit, the attorney will enter into an agreement with the client in which the attorney fronts all of the costs and expenses for the case. The attorney then takes a percentage of the final settlement (generally 1/3 of the final settlement) plus any expenses that the attorney paid to prosecute the suit. Because the attorney is paying for the expenses in order to bring the suit, there can be a dynamic where the attorney feels that they can pressure the client into settlement.
Here is the thing to remember. Your claim belongs to you. It does not belong to the attorney. The attorney voluntarily entered a contract with you in which they agreed to pay for your case. If the case settles, the attorney will most likely make a profit. Just because they are funding your case does not give the attorney the right to put their own business interests above the client’s interest.
(2) How much control do I have over my case?
Although attorneys are fiduciaries (discussed above), the attorney is generally in charge of how to prosecute the case. The client is in charge of deciding about the objectives and desired outcome of the case. The attorney’s power to control the strategy of the case is limited. The attorney must consult with the client about the manner in which the case is conducted. The way this usually plays out is when there are two or more possible courses of action, the attorney must consult with the client to determine which course to take. The attorney should advise you on which course of action she thinks is best.
For example, imagine you are injured in a car collision caused by another driver’s negligence. You go to the doctor and you find out that you need an expensive surgery. You are worried because the other driver’s insurance is denying your claim and you will have to shoulder the cost of getting treatment. You talk to your trusted friend Anne and she tells you that you should speak to an attorney.
Anne is always right, so you are eager to follow her advice. Accordingly, you set up a consultation with a lawyer. After talking to the attorney, you sign a contract and agree to allow them to negotiate with the other driver’s insurance and bring a lawsuit if necessary in order to recover money to pay your bills (and hopefully put some money in your pocket).
Here is where the division of labor becomes apparent. The attorney has the right to decide: (1) when and how to negotiate, (2) when and where to file a lawsuit, and (3) what motions to file and how to progress the lawsuit. The client has the right (and this is important) to decide whether an offer of settlement will be accepted. The attorney has a duty to tell you when an offer for settlement is made and has a duty not to accept a settlement without the express consent of the client. We are not saying that as a client, you should not listen to advice from your attorney about the ultimate value of your case, and whether or not settlement is the best course of action. However, always remember that the choice to settle lies solely with the client (you).
In sum, as the client, you tell the attorney what you want to get out of a case. The attorney decides how to get you what you want. While strategy is generally the decision of the attorney, this does not mean that the attorney does not have to update you about the status of your case. A good attorney should involve you in decisions about how to prosecute your lawsuit when it is in your best interest and anytime a choice is substantial in the outcome of your case.
(3) How often should my attorney update me on my case?
This is simple enough. Your attorney has a duty to keep you reasonably updated about what is happening in your lawsuit. Your attorney should welcome questions about your case and should generally respond to a request for an update within 24–48 hours.
A caveat: it is important to understand that litigation (and the legal process at large) takes time. Sometimes, it takes a lot of time. While you should call your attorney enough to stay updated on your case, you should not call so much that your attorney spends all of her time on the phone with you. Calling incessantly not only slows your case down, but in some circumstances it can lead to high legal bills (especially if your attorney is paid by the hour) or can even lead to an attorney withdrawing from your case. Generally, if you have hired a trustworthy attorney, you can count on them to call you when there is something that needs your attention.
Another thing: although it is normal to speak to paralegals and legal assistants when you call, you should be able to talk to your attorney on request. It may not be immediate (they may have to call you back) but when an attorney appears to be avoiding talking to you, that is a red flag. You are paying for legal services from an attorney, not a paralegal. Although paralegals are often very knowledgeable, they are not licensed attorneys. Do not be afraid to ask for your attorney.
(4) Attorneys should not yell, scream, or curse at clients. Period.
Too many times we have heard people say that their attorney screamed at them. This should not happen. It degrades the attorney-client relationship and it hurts the legal profession by making attorneys look bad and discouraging people from asserting their rights. The bottom line is that your attorney should be on your side (see “fiduciary” above).
Further, from our perspective, if your attorney is so quick to lose their temper with you, what does that say about their professional judgment? If the attorney treats you poorly, how do you think they are treating people they are not charging? Pay attention to how they treat their staff—that is a good indicator of your future professional relationship with that attorney. Do you want the person you entrust to represent your interests to be a hothead that can’t handle stressful situations and interactions with other people?
You should be up front with your attorney and ask questions when you do not understand. This is the entire reason that you hired an attorney in the first place. If your attorney treats you like an annoyance or gets upset at you for asking questions, then you should consider finding new counsel.
(5) Can I fire my attorney?
Simply put, YES. Attorneys serve at the pleasure of their clients. You generally have an absolute right to decide who is representing you. However, sometimes firing an attorney can have consequences. You will probably have to pay the attorney either a reasonable amount for the work performed on a case or an amount you agreed to pay in the contract. In the context of personal injury, it is a standard practice for attorneys to retain an interest in your case in order to pay them for the time spent working on your case and to recover any expenses incurred while the attorney was representing you. In many cases, this will not increase the overall attorney interest in your case; however, it may limit your options in finding a new attorney willing to take a reduced fee on their end. What you owe will be governed by your specific agreement with the attorney.
The best way to avoid this situation is to pick an attorney you trust and communicate with your attorney often. If you think something is awry, talk to the attorney and ask them to explain the situation.
Lawsuits can be very complicated and technical. It is worth it to take the time to consult with more than one attorney when you need representation. Look for someone that comes across as knowledgeable, genuine, and empathetic. However, if the attorney’s genuine attitude evaporates after you sign a contract, then more often than not it is worth it to consider seeking counsel elsewhere.
Your intuition about an attorney’s character in the hiring process is the first line of defense in preventing a breakdown in the relationship down the road. Do not be afraid to meet with multiple attorneys when deciding who will represent you.
Conclusion:
It is important to find an attorney that cares about your interests. Remember that you are entrusting them with your case, whether that is recovery for a personal injury claim, ensuring that your estate plan efficiently passes your property to your loved ones after you die, or any other kind of legal issue that necessitates an attorney. Find someone that is empathetic to your needs and is genuinely concerned about accomplishing your goals. Look out for warning signs such as an attorney appearing to show concern up front which then shifts to what appears to be a total lack of concern after you sign a contract.
Your attorney should be professional, empathetic to your needs, and responsive to your questions. Lawsuits can be the most emotionally trying time in your life. Having a good attorney makes a huge difference in what can be a difficult time. Considerations like these are what make the Law Offices of Gregg & Gregg different. We are determined to provide a professional and human experience to our clients.
Helping clients is why we became attorneys and is what drives us forward day-to-day. As such, we enjoy providing these blog posts to answer legal questions using straight-forward and honest language.
Please feel free to contact us if you have any questions about this post or are in need of legal representation. We are here to help.
*Please note this blog post is only intended for educational purposes and does not constitute legal advice.
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