Should I fire my bankruptcy lawyer?
So an unfortunate reality of life is that when you hire a professional to provide an expensive, specialized professional service, unless you or a really close friend or relative is part of that specialized profession, you have no idea if you’re getting a decent lawyer or a horrible one. I, for instance, am not a doctor. I cannot tell a good urologist from a bad one. I have to rely on the reviews I see online, the recommendations of those doctors I do know, and what I hear from friends and family.
We’ve spent time on how to pick a bankruptcy lawyer. But what about after you’ve already gone and done it – and picked a loser? Is there anything you can do about it? If so, what?
Well, this is not an easy place to be in, and your options are going to be limited by certain professional realities that discourage clients from switching lawyers too easily. That said, you do have the right to be represented by counsel of your choosing and you CAN do something about it.
1. Talk to your Lawyer first. Give the guy the benefit of the doubt. Maybe he just had a new child. Maybe he had to fire a secretary for stealing. Maybe he had the flu. Most problems you have with your lawyer can and should be resolved with a phone call.
What if they don’t answer your phone call? You should try at least three times and give at least a week or two for a response. Not every problem can be addressed immediately – a thought-out answer is better than a hasty one, even if you must wait for it. And you’re not the lawyer’s only client.
2. Second, write your lawyer a letter. Even if you can’t get a return phone call, you should not rush to find a new lawyer. If you have left messages for two weeks and still can’t get a response, write a letter. Not an email (to me, an email is about 1/3 of the way between a voicemail and a real paper letter). Sit down and compose your thoughts. Explain your concerns in a calm, friendly manner. Remember, you are both on the same team, and he works for you. Give him a week or two to respond.
3. Write a letter to the bankruptcy court. Writing a letter to the Court is a pretty serious step, so be sure that it is what you want to do before you do it. But I put it here for a reason. In most Chapter 13 cases, the attorney’s fees are paid very early on in the case, and if you do end up having to hire a second lawyer, you’ll have to either fork out money to pay a new lawyer or ask the court to disgorge your previous attorney’s fees. Unless you live in a very large city with a relatively cutthroat bar, there are very few lawyers who will file a motion to disgorge fees from one of their colleagues. So if you are going to make a move, it is better to do it sooner than later. If all your lawyer did was meet you once and file a petition, you have a pretty good argument for asking the court to award 1/2 the total attorneys’ fees to your new counsel.
That said, if you have the income or cash on hand, you can just write off the fees your old lawyer got and agree to pay your new lawyer $1,000 or so from your future Chapter 13 payments.
Even if you don’t end up hiring a new lawyer, a letter to the court will definitely get your lawyer’s attention. Lawyers HATE being called out in front of a judge. Of course, some lawyers deserve it. If your lawyer wishes to withdraw, the bankruptcy judge may not allow them to quit until you’ve found a new attorney.
4. Talk to a second attorney (and maybe a third). If you’ve decided that your first attorney is a hopeless case, it is best to make a fast and clean break. Make appointments with at least one or two other lawyers in your area and meet with them. Learn from your past mistake and look for a lawyer that doesn’t share the weaknesses or sloppiness that so upset you in your previous lawyer. Ask all the questions you wish you’d have asked the first guy. And most importantly – be humble and open to bad news. Lawyers are immediately suspicious of any client who blames their problems on their lawyers. Unless the lawyer you left was a total hack or somebody nobody’s ever heard of, you’re going to be presumed to be a problem client. And nobody wants a problem client. If you fired a previous attorney and embarrassed him in front of the judge for a minor issue, you’ll have trouble finding a new lawyer to take over your case. Assuage the new lawyer’s fears. Explain what efforts you put into resolving the problem peacefully, and why it was important enough to you to change. Figure out what you’ll need to pay the new lawyer. Ask if the new lawyer thinks your concerns were justified or overblown.
5. Write a termination letter to your old lawyer. A lawyer should always be fired in writing. Demand a refund of all unearned fees, and an accounting of all fees which the lawyer claims to have earned. This should be written into the original retainer agreement. Mine, for instance, has several benchmarks built into the attorney fee provision, such that a client who fires me (it has never happened, but one day it might) owes me less for a case that was just filed than one that has been confirmed and running for a year. Don’t expect a detailed description of every single phone call or email that was made on your behalf, but at the very least, the fees should reasonably relate to the amount of work provided. If your lawyer only met you for 30 minutes and then a paralegal did 4 hours of work putting your petition together, then you shouldn’t be paying more than $1,000.
6. If your previous lawyer’s conduct was really horrible, file a bar complaint. This is a serious step. Filing a bar complaint can create serious problems for a lawyer. Even a frivolous bar complaint demands a response and potentially a time consuming and embarrassing hearing. Bar complaints are only appropriate when your attorney has done something unethical, unfair, or grossly negligent. For instance, if your mortgage company filed a motion for relief to foreclose on your house and your lawyer consents without even calling you to evaluate possible defense, that is negligence that could cost you a lot of money. If your lawyer steals your money and doesn’t even try to do what he said he would, that is a problem. In general, I would not file a bar complaint without first asking another lawyer in the same field if your previous lawyer’s conduct was truly a breach of professional duties. Even if you are really disappointed with a particular outcome, it may not have been your lawyer’s fault. Some cases are hopeless from the outset, and you may be too emotionally involved to realize that your case was a loser. That said, I have personally seen a lot of crappy lawyering in bankruptcy court, and the repeat offenders need to be called to account for their actions.