From time to time, we are asked by new clients to take over carriage of their personal injury files from another personal injury lawyer. In all cases, the client is very unhappy with their current personal injury lawyer and have reached a critical point where the client and solicitor relationship has deteriorated.
In our experience, the main reasons a client wishes to change personal injury lawyers are as follows:
1. The lawyer will not work on the file and has improperly delegated the file to someone else in the office such as a paralegal or law clerk.
2. The client has tried for weeks and sometimes months to reach the accident lawyer or his assistant, to no avail. No explanation is provided for why the lawyer never calls back.
3. The file is passed from one accident lawyer to the next in the same law firm.
4. The file is not progressing at all.
5. The client receives no updates at all.
6. The delay in the case is not explained at all.
7. There is disagreement on the conduct / steps of the case.
8. The accident lawyer recommends a settlement that the client objects to.
9. The lawyer changes his view significantly on the merits of the case without any explanation.
10. The lawyer refuses to continue with the case.
11. The lawyer is charging much more money than was quoted.
12. The lawyer is rude or lacks compassion.
As a client, one or a combination of the above reasons may trigger you to re-assess your relationship with your accident lawyer. If you experience difficulties in your relationship with your injury lawyer and attempts to work out a solution fails, or if your relationship with your current injury lawyer has deteriorated to the point that you have lost confidence in your injury lawyer for any reason, we would be pleased to meet with you free of charge and discuss your options, including a transfer of your personal injury matter to our law firm.
Is it always appropriate to change personal injury lawyers?
As a word of caution, we mention that it is not always in your best interests to transfer your file to a new personal injury lawyer. In many cases, after reviewing the matter, it turns out, for various reasons, that it is in a client’s best interests to remain with their current personal injury lawyer. For example, after reviewing the situation, the file is actually progressing well, the former lawyer was doing a fine job with the file and the real issue was simply a lack of proper communication between the lawyer and client. If the client had been provided regular updates, all would be fine, or if the client was given an explanation for the delay, all would be fine.
In such cases, a meeting between the client and injury lawyer to discuss the issues often solves the problem. In some cases, the client may have unrealistic expectations about the time-line or result of their case. Again, a meeting with the injury lawyer to obtain answers can sometimes provide the information needed to resolve the lawyer client relationship. In some cases, a meeting between the lawyer and client can clear up any misunderstandings and expectations in the lawyer client relationship and the terms of the continued relationship can be agreed upon.
Every case of a request to transfer the file is assessed and considered on its own merits and once the relevant facts received. If, after considering all the facts, the former lawyer has and is not pursing the injury claim properly, we will entertain a request to transfer the personal injury file to our office.
What are the client’s rights when seeking to transfer the file?
The client has the right to change lawyers. In a lawyer client relationship, as the client, you have certain rights and interests. You have, for instance, the right to a report on the status of your file from time to time and you have the right to request a copy of your file (or rather, you are entitled to your file and the lawyer is entitled to a copy of it). In most cases of a request for a file transfer, the lawyer will wish to impose certain conditions to transferring the file, usually pertaining to a protection of and/or payment of his/her legal account for legal services rendered. The conditions will depend on the nature of the retainer agreement; essentially was the retainer and fee on an hourly rate basis or on a result obtained basis.
There are some added costs to the client in that your new personal injury lawyer will have to review the file and obtain, as best as possible, the knowledge the former injury lawyer has about the file; obtained by a thorough review of the file and time spent with the client reviewing the facts and issues.
Changing injury lawyers is not very complicated, but it takes some times and the proper procedure must be followed.
At Plant Quinn Thiele Mineault Grodzki PC Mineault Grodzki PC, if we agree to take over carriage of your file we will take all the necessary steps to have the file transferred to our law firm and we will negotiate the terms with your existing personal injury lawyer.
In summary, the steps are as follows:
1. Notify the former injury lawyer that you have retained a new injury lawyer;
2. Request for the physical file be transferred from your former injury lawyer to your new injury lawyer ( serve him with a direction seeking that the file be delivered to the new accident – injury lawyer );
3. Notify all parties of the change in injury lawyers;
4. If the matter is in court ( a statement of claim has been issued ), notify the court and all opposing lawyers that you have retained a new injury lawyer;
5. If there is objection from your former lawyer to hand over the physical file, negotiate the terms of the transfer of the file;
6. If negotiations fail and your former injury lawyer refuses to hand over the physical file, file a formal complaint with the Law Society of Upper Canada and file an application (or motion as the case may be) seeking a court order compelling your former lawyer to hand over the physical file – order for delivery of the file;
7. File an application for assessment, which is a court process allowing clients to challenge a lawyer’s accounts and claims for liens against files; and
8. Once the file is obtained ( voluntarily or by court order ), review the file.
If you choose to leave your current personal injury lawyer and transfer your injury claim to another law injury law firm, the process can be easy or quite complicated depending on your former lawyer. Your new injury lawyer will need the physical file from your former accident lawyer. Assuming you have paid any account rendered by your former accident lawyer, getting your file should be as easy as requesting it from your former injury lawyer.
Complications can arise because of issues such as whether you owe any money to your former lawyer and whether there is outstanding accounts owed to your former lawyer and whether there will be a dispute over any percentage billing or fee billing of the file (contingency fee agreements). In every case, if the matter is already in Court (a court action has been commenced) the client must notify the Court and all parties of the change of lawyers. As your new personal injury lawyer, we will file the needed documents with the Court and notify all parties. If your claim is not in Court and you are at the pre litigation stage, we will notify all the parties and insurers involved. We handle every step necessary to have the file transferred.
The physical file held with your injury lawyer is your property. You are entitled to your property and the lawyer is entitled to a copy of the file. Your new accident lawyer will need your file to continue prosecuting your injury case. Any delay in obtaining the file can, in some circumstances, be devastating. For example, a limitation period may be missed or a court event may be missed such as an appearance at a scheduled settlement conference. The faster you can obtain a transfer of the file, the better. If there is a dispute about the account or contingency fee arrangement, obtaining the physical file often becomes an issue. If you are caught in such a situation, your new injury lawyer has options to assist you: negotiating a settlement of the fee is always possible. Also, if the former lawyer is seeking a percentage of the recovery, that issue can be resolved in various ways (i.e. agree on an amount, agree on a percentage, agree to preserve the settlement funds until there is agreement or a court order determining the issue). If negotiation fails, a complaint to the Law Society of Upper Canada can sometimes assist. Also, an application to Court for delivery of the file and a determination of rights to the file is always available as well as an application for an assessment of the account rendered by the former accident lawyer. You can always ask the former injury lawyer to produce an account under the Solicitor’s Act of Ontario, and then proceed to assess the account.