You can change lawyers at almost any point in a case. The client hires the lawyer and the client can end the retainer, without giving reasons and without the first lawyer’s consent. The file belongs to you and it goes to whoever you instruct. How smoothly the change goes depends on what the first firm is owed and how close the matter is to a court date.
Most people who ask this question have already decided. They want to know what it costs and whether it damages the case.
The Right to Change Lawyers Is Yours and It Does Not Need a Reason
A retainer is a contract for personal services, and a client may terminate it. You do not have to justify the decision to the firm you are leaving, and you do not need the court’s permission to make it.
The reverse is not symmetrical. A lawyer may withdraw only where the conduct rules allow it and only in a way that does not prejudice the client, which is why a lawyer close to a trial date usually needs the court’s leave to come off the record.
Retain the New Firm Before You Fire the Old One
Do it in that order. A gap where nobody is acting is how deadlines get missed, and a limitation period does not pause because you are between lawyers.
The practical sequence is that you meet the new firm, it confirms it will take the file, it sends a direction you sign, and it writes to the first firm asking for the file. You do not have to make the awkward phone call yourself. Meetings of this kind are usually free, as set out in the note on what happens at a free consultation.
The File Is Transferred, and the First Firm May Hold It Over an Unpaid Account
The property in the file is largely the client’s, and on a change of counsel the first firm sends it on. In practice the transfer includes the pleadings, the medical records obtained, the expert reports paid for and the correspondence.
Where the first firm is owed money, it may in some circumstances assert a lien over the file until the account is dealt with. That does not end the transfer. It usually results in an arrangement by which the account is protected out of the eventual recovery, and the file moves so the case can go on.
What a Contingency File Costs You When You Change Lawyers
On a contingency file the first firm has done work it has not been paid for, and it is entitled to be paid for the value of that work out of the eventual recovery. The client does not write a cheque at the moment of the switch.
What normally happens is that the two firms agree on how the fee will be divided when the claim resolves, or the amount is fixed later by assessment. From the client’s side the fee coming out of the settlement is generally the same fee it would have been. The arrangement itself is explained in the note on how a contingency fee works.
Where a file has been running for years and expert reports have been paid for, ask both firms to put the division in writing before the transfer. It costs nothing then and it avoids an argument at the end.
What It Costs on a File Billed by the Hour
On a billed file the first firm renders a final account for work done and accounts for whatever remains in trust. If money is left it is returned or forwarded. If the account exceeds the trust balance, the difference is owed.
A client who disputes the amount may have it assessed by an officer of the court in each Atlantic province. The mechanics of trust money are set out in the note on what a legal retainer is.
Changing Lawyers Near a Trial Date Is the One Hard Case
Courts do not readily adjourn a trial because a party has changed counsel, and a new lawyer who cannot be ready will say so. On a civil file that means a change weeks before trial may leave the new firm arguing for an adjournment it may not get.
On a criminal file the same problem is sharper, because the accused has a right to counsel of choice but not a right to delay proceedings indefinitely. A change late in the process needs the court’s involvement and can be refused. The stages of a prosecution are set out in the criminal process guide.
Reasons That Justify the Move, and Reasons That Do Not
Calls not returned for weeks. A file that has not moved in a year with no explanation. Advice you were given that turned out to be wrong. A lawyer who will not tell you what the plan is. Any of those justifies a call to a new firm.
Disliking the advice is not, on its own. A lawyer who tells you the claim is weaker than you believe may be the one being honest, and the second firm that agrees with you may simply be the one that has not read the medical records yet. Get the second opinion, and give the second firm the whole file instead of your summary of it.
Ask the Second Firm the Questions You Did Not Ask the First
Who will actually run the file. How often you will hear from them and by what method. What the plan is for the next six months. What the fee arrangement is and what happens to the first firm’s fee.
Those are the same questions that should be asked at the start of any retainer, and they are set out in the note on how to choose a lawyer.
If the Problem Is Conduct Rather Than Fit
Where a lawyer has missed a limitation period, mishandled trust money or acted in a conflict, the answer is not only a new lawyer. Each province’s law society takes complaints from the public and investigates them, and each publishes discipline decisions. The Nova Scotia Barristers’ Society is the regulator in that province.
A missed deadline may also give rise to a claim of its own, which a new firm can assess. That is a separate matter from the underlying case and it does not stop the case from continuing.
Getting a Second Opinion
Bring the file, or as much of it as you have. A second opinion on a running claim takes one meeting and it is normally free on injury and disability matters.
The Halifax office takes those calls, and what we can do for you sets out the areas the firm acts in.