How to Switch Workers’ Comp Lawyers in Virginia
Why trust this guide? Written by the attorney who negotiates these cases.
You can fire your workers’ comp lawyer at any point in a Virginia case and hire a new one without paying double the fee. The Virginia Workers’ Compensation Commission reviews and approves every attorney’s fee in a comp case, and when two law firms’ attorneys work on the same claim, it divides one fee between them. If your first lawyer wants part of that fee, they assert a lien, and the two lawyers either agree on the split or each file a position statement and let the Commission decide.
Can I change workers’ comp lawyers in the middle of my case?
Yes. In Virginia, a client can discharge a lawyer at any time, for any reason or for none. The Supreme Court of Virginia has held that a lawyer fired without cause is paid only for the value of the work done before the discharge (Heinzman v. Fine, Fine, Legum & Fine, 217 Va. 958 (1977)). You don’t need permission from the Workers’ Compensation Commission, the insurance company, or your current lawyer.
Over the years, many injured employees have asked me to take over representation because they are unhappy with their current attorney. Sometimes, it’s weeks without a return phone call or email. Other times, the worker disagrees with the advice they’ve received concerning settlement evaluation. Often, the worker’s and the attorney’s personalities lead to conflict.
The reason you want to switch workers’ comp lawyers matters less than the next deadline in your case. If you are days out from an evidentiary hearing before a deputy commissioner, the insurer has filed an employer’s application to stop benefits, or you have a scheduled settlement mediation, line up a new lawyer quickly. Otherwise, you risk firing your current attorney and struggling to find new counsel before the next big deadline.
Thinking of changing workers’ comp attorneys?
Call 804-251-1620. I’ll tell you if I think it’s a good idea.
How do I switch workers’ comp lawyers?
My recommendation: Talk with the new lawyer first and confirm representation, then work with the new lawyer to notify your old attorney. The new lawyer can handle the rest, including filing the proper pleadings or motions with the Workers’ Compensation Commission.
The order of changing attorneys:
- Meet the new lawyer and sign the fee agreement. Bring your JCN, any award order, and the last few letters from the insurer.
- Send a termination letter to your old lawyer. You don’t need to put the reason for changing attorneys in writing.
- The new lawyer tells the Commission, the insurer, and the insurer’s lawyer that they now represent you. From then on, the insurer deals with the new lawyer, and the old lawyer asks the Commission to be released from the case.
- The new lawyer requests your file from the old one. Rule 1.16(e) of the Virginia Rules of Professional Conduct requires the old lawyer to turn over the file to you or your new lawyer within a reasonable time, whether or not you’ve paid any fees or costs. Nobody gets to hold your file hostage over a bill.
- The old lawyer decides whether to assert a lien for the work done before you left.
- If you settle the case and the old lawyer asserted a fee lien, the Commission will ask the old lawyer to file a written argument justifying the amount sought, or work out a fee split with the new lawyer. I can usually resolve the fee dispute with the old lawyer without further Commission intervention. Twice I haven’t; however, in both cases, the old lawyer failed to respond to my requests to work it out or to the Commission’s briefing schedule.
You don’t have to call the old lawyer, explain yourself, or sign any additional documents.
Will I have to pay double the attorney’s fee if I change lawyers?
No. Under Va. Code § 65.2-714(A), the Commission must approve every attorney’s fee in a Virginia workers’ comp case, and it has exclusive jurisdiction over any dispute about those fees involving attorneys from different firms. It approves one fee for the case. When two lawyers worked on it, they share that fee.
The standard fee is 20% of the workers’ comp settlement amount. Here is a $60,000 settlement on which the Commission approves a $12,000 fee, once with one lawyer and once after a switch:
| One lawyer start to finish | Switched lawyers midway | |
|---|---|---|
| Settlement | $60,000 | $60,000 |
| Fee approved by the Commission | $12,000 | $12,000 |
| Paid to the first lawyer | $12,000 | $3,000 |
| Paid to the second lawyer | $0 (Not applicable) | $9,000 |
| You receive, before case costs | $48,000 | $48,000 |
Either way, you take home $48,000. The only thing that moved is which lawyer got what. My page on what a workers’ comp lawyer costs in Virginia explains how the Commission arrives at the fee in the first place.
What happens when my old lawyer asserts a lien?
The old lawyer files a notice with the Commission asserting a fee lien for work done before you changed attorneys. Often, the notice is filed with the motion to withdraw as counsel.
I rarely see the old lawyer state the exact amount of the lien claimed. It happens, but it’s rare. When it does, the lien usually equals 20% of the highest settlement offer you’ve received so far, if applicable, or 15% of permanent partial disability benefits you may receive, if you already have an impairment rating.
The Commission doesn’t act on this notice of an attorney’s fee lien unless and until you receive an award of additional benefits, or submit a proposed settlement. At that point, the Commission gives the two lawyers a choice. They can work out the split between themselves, or each can file a written position statement on what the prior lawyer’s share should be. If they brief it, the Commission looks at the time each lawyer put in, the work each did, and the result- the same factors it uses to set any comp fee (Commission, information for attorneys).
That fight is between the two lawyers. Whoever wins it, your share stays the same.
A lawyer who doesn’t file a position statement may lose the lien
If the Commission asks for position statements and the lawyer asserting the lien doesn’t file one, the lien may be forfeited, with the approved fee going to the lawyer who finished the case. I recently had a prior lawyer’s lien struck on exactly that ground: they didn’t file a position statement by the Commission’s deadline. I also presented evidence that they ignored my phone call and email when I tried to resolve the dispute before that date. In another case where the old lawyer failed to submit a position statement, the Commission awarded him a fee equal to 1/3 of what his lien notice sought.
Most fee liens are settled between the lawyers
Most of the time the two lawyers agree on the split by phone or email, and nobody files a position statement. It’s also quicker. The Commission enters the fee order with the agreed numbers, and nobody waits on a briefing schedule and a ruling. For you, the only real difference between an agreed split and a contested one is how long settlement approval and your check take.
Common questions about changing attorneys: straight answers
Do I have to tell my old lawyer I’m firing them? No, but I recommend telling the old lawyer in writing that you are ending the attorney-client relationship. You don’t have to give further explanation.
Can my old lawyer keep my file until they’re paid? No. Under Rule 1.16(e), the file goes to you or your new lawyer on request, paid or not. The Commission sorts out the fee separately.
Can I switch lawyers right before a hearing? Yes, but the new lawyer needs time to learn the case and may have to ask the Commission to continue the hearing, which it may or may not grant. When an injured worker wants to switch to me, and a hearing is scheduled within the next six weeks, I may ask the injured worker to request the continuance first. If the Commission grants it, I will accept representation. Call a new lawyer as soon as you decide to switch.
Can I change lawyers after I’ve gotten a settlement offer? Yes. A settlement doesn’t bind you until the Commission approves it, so a new lawyer can review the offer before you sign. Many workers call me because they feel uneasy about the settlement their current lawyer has recommended they accept. Both lawyers’ shares still come out of the one fee the Commission approves.
Can I fire my lawyer and finish the case myself? Yes. The old lawyer can still claim a fee for work done before you let them go, and the Commission decides it. Whether going without a lawyer makes sense is a separate question, covered in Should I Hire a Lawyer or Represent Myself.
Will the insurance company know I changed lawyers? Yes. The new lawyer tells them, and they can see it in the Commission’s file. Your benefits don’t change because you did. If you’re under an award for wage loss benefits, you should keep receiving those checks on time.
If you’re thinking about leaving your lawyer
Whether to stay is your call, and worrying about paying a higher fee shouldn’t be what keeps you. If you do go, hire the new lawyer first. Let that lawyer send the notices and collect your file, and leave the fee split to the two lawyers. They usually work it out without the Commission.