It's not uncommon for people dissatisfied with their representation to wonder if they can fire their attorney. Although in some cases an attorney is court appointed (like where a criminal defendant cannot afford to hire an attorney), almost all attorney-client relationships are governed by contract. That means that the terms and scope of your relationship with your attorney will be constrained by the language agreed at retention.
Most attorneys require a signed retainer agreement as a condition of representation, but just because there is no written agreement does not mean that there is no contract between you and your attorney—most contracts are valid even if they are not written down. However, if your agreement was not in writing your attorney may have other problems as there are certain disclosures an attorney must make, in writing, prior to or contemporaneous with retention to comply with ethical rules, including any agreement for a contingency fee.
If you do have a written agreement with your attorney, the first place you should look if you are not happy with your attorney’s representation is in this retainer agreement. If the agreement does not address your particular concern, you should consider talking to your attorney directly. If your attorney is reasonable, he or she will be willing to spend the time to make sure you are happy with the representation. If your attorney does not respond (the number one bar complaint against attorneys is for their failure to respond to client inquiries), or if he or she does not adequately address your concerns, then it may well be time to end the relationship.
The Nevada Rules of Professional Conduct provide that certain requirements must be met before an attorney can withdraw from representing a client, and in some cases a judge will refuse to allow an attorney to withdraw, including if the withdrawal will unduly prejudice the client’s rights.
However, there are no rules proscribing a client from severing the relationship—the client is free to terminate the services of an attorney at will. Understand, however, that although you can choose to fire your attorney and then either represent yourself or hire another attorney, there are consequences for doing so.
For example, if you have retained the attorney on a contingency basis, and you hire an attorney part-way through the case—meaning the attorney has worked but has not yet been paid—the attorney has a right to a share of any recovery earned through the subsequent representation, commensurate with the proportion of work performed on the case. The attorney will do this by filing an attorney’s lien, which notifies any future attorney on the case of the prior attorney’s rights to payment.
If you have been paying an attorney on an hourly rate, the balance of your account must be paid to prevent the attorney from trying to collect what is owed. If there is a balance, the attorney has a retaining lien, which gives the attorney the right to retain your file—the documents, photos, videos, and other papers and evidence that have accrued—and refuse to turn it over to you or your subsequent attorney until such time as the balance of the account is paid.
Attorneys are people too, and they are not perfect. However, just like in any other service profession, you have a right to expect quality service, and if your expectations are not met, you can seek the same services from someone else.
Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or firstname.lastname@example.org.