Switching personal injury lawyers
I receive telephone calls from prospective clients all of the time who are dissatisfied with their current personal injury lawyer and seem to
think that if they switch attorneys, they will be obligated to pay another 1/3 of their settlement to the new lawyer. Clients become unhappy with their injury lawyer for a number of different reasons, but the main reason that I hear is that the attorney isn’t returning their phone calls in a prompt matter. When a client repeatedly has to call their lawyer and they are ignored, or it takes days or weeks for the attorney to get back to them, the client starts to feel that the lawyer really doesn’t care about them or much about the case. Anyone would get frustrated with being ignored. It is a bad business practice to ignore client phone calls. Another frequent reason I hear for client dissatisfaction with their lawyer is that the lawyer doesn’t explain things to them and they have no idea what is going on with the case. We make it a regular practice to call of our injury clients every 30 days to check in on them, particularly while they are still treating so we know exactly how they are doing with their treatment for their injuries and can answer any questions that they have. Another frequent complaint that I hear from clients calling looking for a new injury lawyer is that they are unhappy with the offer from the insurance company, or that they are feeling pressured to settle from the lawyer when they either are still hurt or they think the offer is low.
For all of those reasons, and perhaps others that causes a client to start looking at around for another lawyer, the legal question is how does the 1/3 contingency fee get split up? Is the client obligated to pay 1/3 to the discharged lawyer and another 1/3 to the new lawyer? That would seem immensely unfair, leaving the client’s settlement at a 1/3 left of anything obtained and that the 1/3 would cover all of their medical bills, any time lost from work and their pain and suffering. The good news for the client, at least in Wisconsin, is that it does not cost another 1/3 to hire a new lawyer; rather, the same 1/3 the client signed up for with their first lawyer, gets split between the discharged lawyer and their new lawyer. The attorneys either agree how to split up that same 1/3 contingency fee, or there is case law that determines how the fees get split between the two attorneys.
Under the case of Tonn v. Reuter, 6 Wis. 2d 498 (1958), “the proper measure of damages to apply in a personal injury case is the amount of the contingent fee based upon the amount of the settlement or judgment ultimately realized by the client, less a fair allowance for the services and expenses which would necessarily have been expended by the discharged attorney in performing the balance of the contract.” “However, any deduction for services yet to be performed in order to earn the contingent fee should not be made on the basis of deducting such fraction of the contingent fee as equals the fraction of the total work not performed at the time of discharge.”
I am sure you are asking yourself, what does that mean? It means in 1958, when the case came out, people talked a lot more in “legalese” than they do now! The case basically stands for the proposition that the discharged attorney makes claim to the entire 1/3 under the original contingency contract, less the amount of work the new personal injury attorney puts in with trying to complete the case. The new lawyer generally is forced to keep time sheets, like a billable file to show all work that they put in when the client either settles the case or it goes to trial. The more work the new injury lawyer has to do in completing the case, the more they have claim to compensation from the 1/3. I have had some clients over the years get very angry that the first lawyer that they fired should get anything out of the settlement at all. I explain to them that their previous lawyer under Tonn is entitled to compensation for work they performed on the case, if the client discharged the lawyer, as opposed to the other way around; further if the client feels they were wronged or harmed by their prior lawyer’s representation of the case, they can consider the option of filing an ethical grievance against the lawyer and if the damage was serious enough, a professional malpractice case.
If you have issues with the current representation of your injury case, call the experienced personal injury lawyers at Karp & Iancu, S.C. for a second opinion.