It’s unfortunate that sometimes an injured person may find themselves in a situation where they need to change lawyers part way through their personal injury claim. This may be for a variety of reasons, but common reasons include a breakdown in the relationship between the client and the firm or circumstances where the law firm is prevented from acting for the client due to a conflict of interest.
These “break ups” are difficult, but they do happen. It is important to be aware of your rights, and the rights and obligations of the law firm, to ensure that the termination of your agreement with them causes the least disruption to your personal injury claim.
The bottom line is, it is important to ensure that communication is clear and respectful.
Your rights when engaging a lawyer
When you engage a law firm to act on your behalf in relation to a personal injury claim, you should be aware that you have rights under the uniform law. The Victorian Legal Services Board + Commissioner provides a helpful factsheet that you should familiarise yourself with when engaging lawyers to act on your behalf
Complaints about law firm behaviour
Like engaging any professional services, you have the right to make a complaint in relation to a lawyer’s behaviour or work that they have or have not done. A lawyer has a paramount duty to the court, and they have a duty to act in the best interests of their clients.
A lawyer cannot act contrary to their duties, and if they do so, this can result in penalties and disciplinary action against them. If a lawyer behaves or acts in a manner that is contrary to their duties, a complaint can be made to the Victorian Legal Services Board.
Complaints about law firm costs
In addition to complaints regarding a firm’s behaviour, you also have the right to complain in relation to legal costs that have not been adequately disclosed to you. There are strict guidelines as to what constitutes disclosure, and it is important that you are familiar with all your communications with your lawyers.
It is essential that before you make any complaint regarding your current lawyer or you decide to terminate your agreement with them, you revise the written agreement you have with the law firm, which details your obligations. If there is any section of this agreement that you have not complied, it is important that you are aware of that and what the implications are in those circumstances.
A law firms rights and obligations
Most cost agreements for acting in personal injury claims are based on a “No Win No Fee” structure. This means that a firm will not seek legal costs from a client unless and until a win has been achieved. A win is basically compensation for their injuries.
But what happens if there is a “break up” between the firm and the client before the case is finalised?
When a client signs a written agreement engaging a lawyer to pursue their personal injury claim on their behalf, they are agreeing to be bound by the terms of that agreement until the objective of that agreement has been completed.
In circumstances where the objective cannot be completed (i.e. the case is not run through to a conclusion), for reasons such as a breach of agreement or a conflict of interest, the law firm that was engaged has the right to seek their legal costs for the work done up to the date of the “break up”. This is known as a lien.
If a client did not comply with the written agreement they had with the law firm, they are said to have breached that agreement, and this may also lead to a situation where the law firm has the right to claim their costs regardless of a win.
However, it is clear from the rules relating to termination of agreements that the law firm must minimise disruption for the client. Although the law firm is not obligated to find new lawyers for the client, they must cooperate and assist in the transition process by acting reasonably and resolving any claim to costs with the new lawyers with minimal disruption to you.
Can a law firm terminate its agreement with you?
A client can terminate an agreement with a law firm whenever they want, however, a law firm cannot terminate agreement without just cause.
There are strict rules on the grounds of termination, and a law firm must ensure that it has terminated its agreement with you for a just and reasonable cause. The firm must also ensure that a termination of the agreement does not impact your personal injury claim – whether that is by respectfully engaging with your new lawyers and ensuring communication lines are open.
A just and reasonable cause is not defined in the law and is open to interpretation.
However, the common understanding is that just and reasonable cause refers to irreconcilable differences between the client and the law firm. This would include:
- a breakdown of trust and confidence; or
- a conflict of interest; or
- sustained disputes about legal costs; or
- the law firm’s inability to obtain instructions from its client.
Does a law firm have to provide notice of ceasing to act for me?
Yes. A law firm must give you reasonable notice of its intention to terminate its agreement with you. This is where the need for clear and respectful communication is needed.
Timing is important; for example, a law firm cannot be seen to have given you reasonable notice if you are a day or 2 away from a trial commencing. However, you should be aware that where there is a breakdown in the relationship or a clear breach of the agreement by you, there may be an exception to reasonable notice requirements.
Throughout the process of the “break up”, it is important to note that the law firm will continue to owe you a duty of confidentiality. Thus, the reasons for the “break up” are not to be disclosed or discussed between law firms.
Do I need permission from the court to change lawyers during a case?
You do not need permission from the court to change lawyers if you choose to do so.
However, the law firm you have disengaged with will need approval from the court to formally cease acting for you. This includes providing the court with an affidavit and statement to confirm that everything had been done to ensure that the transfer of your matter to another law firm is adequate.
Considering changing your lawyer during your personal injury claim?
As with any service, it is important to acknowledge that sometimes “break ups” happen and it doesn’t have to be difficult and abrasive.
It is important that you understand your rights and obligations as set out in the agreement you have signed with the law firm you have engaged. It’s also important to be respectful and courteous throughout your dealings with the law firm.
At the same time, it is important that the law firm you have engaged provides the service that you have been promised under the agreement, is respectful and courteous and acts within its duties towards you throughout its dealings with you.
There are costs implications for you if you do not comply with an agreement or if the agreement ends before it is fully completed, and this is regardless of a ‘No Win No Fee’ agreement.
If you’re having any issues with the law firm you have engaged or wish to seek a second opinion about a legal issue please contact Polaris lawyers.
Further reading
You may also find some of our earlier blogs useful or interesting reading.
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