50 ways to leave your lawyer: your rights and responsibilities for ending a ‘No Win No Fee’ agreement

A lawyer’s relationship with their client is built on trust and confidence. Maintaining the relationship is critical to getting a great outcome in personal injury claims and in legal and insurance disputes more generally. But if the relationship has broken down and you’re considering changing lawyers, there are some things to consider first.

While we never approach people suggesting they change their solicitor, at Polaris we’re often approached by clients looking for us to take over their personal injury claim. The call usually comes at a stressful and uncertain time when the client wants certainty about their claim and their financial and personal wellbeing.

There can be many different reasons for a client wanting to change lawyers. It’s important to understand what went wrong and it’s also critical for clients to understand their legal rights and obligations when ending their engagement with their personal injury lawyer.

This situation can be very different from a lawyer ending their agreement with a client, or advising them that they can no longer act – and I’ll set out the legal implications of your lawyer ceasing to act, in a future piece.

Here we take a look at some of the common reasons that people change lawyers and the legal implications of ending a ‘No Win No Fee’ agreement.

1. Communication: Without a doubt, the most common reason clients give for moving to Polaris is that they’re having trouble speaking to their lawyer. People will say, “I call them for an update but they never call me back”, or “when I call the office I get put through to a heap of different people who don’t know my case”. Sound familiar?
2. Missing Lawyer Syndrome: It’s alarming to hear how often people have 3 or 4 different lawyers or legal teams in the life of a personal injury claim. Circumstances change and sometimes this can mean a change in your legal team. But when the lawyer who meets you in your first consultation is replaced again and again by a new lawyer, it’s time to think about what is going on in the firm and whether you and your claim are being valued.
3. Pace of the case: Personal injury claims inevitably take longer than you or your lawyer would like. In some cases, this is because your lawyer has too many cases or isn’t putting the time and dedication into your case that you deserve. There can also be a number of reasons for a personal injury claim being slow to resolve; including that you’re having further treatment for your injuries, because an insurer is moving slowly or because a court has set a hearing date many months into the future.
4. Advice: Being a lawyer in personal injury matters means giving tough advice. Claims don’t always succeed (and you should be very wary of anyone who tells you that they’ve never lost a case) and as a result, there is a chance that you are going to receive advice that you don’t like. Being unhappy about the legal advice in your claim is very different however, to getting advice that you suspect is incorrect, puts you under pressure to settle your claim, is badly communicated or which indicates that your lawyer is suddenly too busy to continue your claim.

Generally, personal injury clients have the right in Victoria to end their ‘No Win No Fee’ agreements at any time in writing.

But there are a number of things which you should consider first.

1.  The timing

It is a myth that ending your engagement with a lawyer means that you have to “start again” with your claim. While a new lawyer may need a short period of time to obtain and review your paperwork, the claim is generally able to be continued without the need to “go backwards”. Having said this, the timing of any change is important. If there is an urgent deadline such as a court hearing date or a limitations date approaching, it can be a difficult and unnecessarily stressful time to transfer your case to a new lawyer.

2.  The financial implications

What impact would changing lawyers have on who is paying for the costs of the claim? Will a new law firm be prepared to match the terms you had with your current lawyer?

3.  Will a new lawyer really change things?

Before looking for a new lawyer, it is very important to think about what you are trying to achieve by making the move. If a case is moving slowly for reasons that are out of your lawyer’s control, a new legal team won’t change that fact. If your own conduct is the reason for the problems in the case (for instance, you haven’t been honest about your medical history), then what difference would a new lawyer make?

Before changing lawyers, talk to your current lawyer first, about your concerns. It can be helpful to give them an opportunity to address any questions or concerns that you have and to rebuild trust and confidence in the working relationship. If you are concerned about the advice the lawyer has given you, you can ask for a written opinion from an independent barrister who can provide you with a second opinion.

If speaking with your current legal team does not resolve your concerns and you’ve decided to end your agreement, there are a few things you should do before notifying them of the change.

1. Review the written agreement you have with your lawyer. What does it require you to do to end the relationship? What action can the law firm take in response?
2. Check whether any fees or disbursements (third party expenses like medical reports) are currently unpaid.
3. Speak with a new lawyer and get advice about your case and the process of moving lawyers. A new lawyer will be able to guide you on how your previous lawyer is likely to try to enforce their rights under the agreement. Find out whether another lawyer or firm will be willing to take over the case and whether they will be prepared to continue your claim on the same terms that you had with your previous lawyers. You should also check who will be responsible for the fees and disbursements of your previous solicitors and who will be responsible for getting a copy of your file.
4. It’s also worth understanding that a new lawyer cannot represent you or take any action to protect your interests until you have formally ended the relationship with your current lawyer

The process of changing lawyers can be stressful but it can be made much easier by carefully considering the steps you need to take and by engaging a legal team who you trust to guide you through the process.