In the US, you have the right to change attorneys in a sexual assault case at any moment. However, in some cases, the timing of a lawyer’s switch may affect the outcome and require court approval.
It’s always a good idea to listen to the red flags that you may have noticed. If you’re considering a change, then it’s likely for good reason. But it’s important to know the impact on your case.
In this guide, you’ll learn your rights over firing a lawyer and how you can get started on a switch.
What Rights Do You Have in Changing Attorneys in a Sexual Assault Case
Civil Sexual Abuse Cases
In US civil sexual abuse cases, survivors have the right to choose their lawyer via the Sixth Amendment.
That means you can fire a lawyer during an abuse lawsuit for any reason. And, therefore, you can appoint a new one.
The outgoing lawyer may be able to claim payment for the work they’ve already done, but this will likely come out of the settlement secured later, not be an out-of-pocket cost now.
However, your new lawyer will negotiate this fairly to protect your net recovery. For that reason, it’s advised to read your existing agreement with them before taking action.
Attorney-Client Privilege Remains
When switching lawyers in a sexual abuse case, the attorney-client privilege still applies, even when they’re no longer working with you. This is your right per Texas Rule of Evidence 503.
That means all communications and private information remain confidential. They cannot share it with third parties or take any action that could negatively affect your case.
You also have the right to have your case file transferred to a new lawyer. All the evidence, medical records, and witness statements are yours.
Warning Signs You Need a New Sexual Abuse Attorney
Changing attorneys in sexual assault cases is not unheard of. We’ve been approached by many sexual abuse survivors, following the reasons listed below, which may help you to understand if your ‘red flags’ better.
Lack of Trauma-Informed Approach
Sexual abuse cases are sensitive and require expertise that understands the severity of the abuse and feels safe. The lawyer must work to prevent further emotional harm.
A switch in lawyers can absolutely be necessary if they are dismissive of your emotions or make you feel vulnerable. If you feel pushed, out of control, or shamed, then it may be time for a change.
Our team, for example, ensures that our clients are listened to at their own pace. Even when memories are fragmented or difficult to recall, we understand that trust, patience, and validation are a must.
If you feel pushed, out of control, or shamed, then it may be time for a change.
Lack of Response When Abuser Contact Occurs
Any harassment from abusers should be taken very seriously by a survivor’s attorney. Evidence should be logged, and cease-and-desist demands may be necessary.
If an attorney fails to provide that protection promptly, they have failed to demonstrate their efforts to protect their client.
Communication Failures Specific to SA Cases
Any client of a sexual abuse attorney deserves clarity and honesty. Unexpected demands or breakdowns in communication are a big red flag.
For example, your lawyers should explain in advance what to expect in a court appearance. From the number of people in the room to the emotional preparation before, you should never be expected to show up.
We aim to make the process easier to manage by clarifying expectations from start to finish, so you feel in control at all times.
Inadequate Case Investigation
Evidence is the crux of any sexual abuse case. Your sexual abuse lawyer must aggressively investigate your case from all angles.
In some cases, investigations can even reveal abuser pattern behavior. Failure to do so can be a big missed opportunity.
In cases involving organizations such as churches and schools, it’s also a big red flag if they fail to request personnel files or to cover up emails. They have to go the extra mile.
Lack of Resources
You may want to switch lawyers in a sexual abuse case if it appears they simply don’t have the resources to support you.
For example, if you don’t have the contacts to get expert witness statements (such as from a forensic psychologist), then your case is at risk of being weak. Particularly in sexual abuse cases, experts on grooming and trauma can be very valuable.
Pressure Tactics Around Settlement
If the lawyer starts pressuring you to accept a quick payout before you understand the full extent of the damages, the alarm bells should be ringing.
Rushing into a deal will mean they haven’t fully investigated the extent of money you deserve and the potential justice that you can feel.
As a survivor, you also deserve the right to make the case public (if you wish) to expose the abuse. Any NDA deal to hush you may completely dismiss a therapeutic and victim-supporting approach.
How to Switch Lawyers During Your Sexual Abuse Case
Step 1: Find New Representation First
Finding a new sexual abuse law firm before notifying your current attorney will make the transition much smoother. They will be able to talk to you first and advise you on your situation and how to handle it. Plus, it will prevent the case from stalling when you transition.
We recommend seeking trauma-informed lawyers, such as those at Shrader & Associates. Confirm that they have sexual abuse lawsuit experience and schedule a consultation.
We also advise that you understand the statute of limitations so that you can avoid time-barred errors.
Step 2: Review Current Retainer Agreement
Before switching lawyers in a sexual abuse case, you should review your current retainer agreement to understand any financial obligations in your change.
You can do this with the new attorney you want to change to. They will have the knowledge to spot terms that you need to manage carefully and adjust their contingency fees as necessary.
The outgoing attorneys will likely claim a proportion of any settlement you secure, based on the work they’ve done. But again, this will depend on your case.
Step 3: Written Termination Notice
Next, you’ll formally terminate the old sexual abuse attorney with certified mail. You don’t need to give any reasons to them, just the notice.
Step 4: File Substitution of Counsel
If the lawsuit is not actually active yet, then the switch requires no court involvement (so you can skip this step). But if the lawsuit is active, then you must formalize the switch via a court filing.
Your new attorney will take care of this task by submitting a ‘Notice of Substitution of Counsel’. Usually, the outgoing attorney will consent to the switch to maintain ethics and their reputation. But should they refuse, a court order will be required. This is rare.
Step 5: Case File Transfer
With your new attorney, you’ll then request a full case file within 10-30 days. This will include physical and digital evidence, expert witness work, and discovery materials from the defendant.
Timeline Considerations
The statute of limitations is the deadline for filing a lawsuit after the abuse occurred. You should always consider this before making a change. In most cases, there is nothing to worry about, but we recommend that you are aware of the timeline just in case you are close to it.
You can understand the timeline in a sexual abuse lawsuit here.
The Financial Impact of Switching Lawyers
Contingency Fee Complications
Your original attorney is likely entitled to ‘quantum meruit’, which in English means a reasonable value of the work they performed.
This will be calculated as a percentage of the settlement or the hourly rate for the time they invested (sadly, even if they did a bad job).
You won’t be expected to pay this out of pocket, though. Instead, it will be taken from your final settlement. As previously mentioned, your new attorney will help you understand this better by reviewing your case. We recommend you demand transparency with your new lawyer before making the switch.
Fee Arbitration
If your old lawyer plays hardball and demands an unfair amount, there are state dispute programs. Sadly, they can delay the case if an agreement can’t be reached, and a court may be required to intervene.
With the help of a reputable law firm, though, this should either not happen or pass smoothly.
Will Switching Lawyers Hurt Your Sexual Abuse Case?
Switching lawyers during an abuse case very rarely negatively affects the case. Usually, the step-up in service strengthens the case and makes the experience better.
The worst-case scenario is that the old lawyer makes life difficult, delaying the switch while you wait for court approval. But again, this is rare.
Have a Free, Confidential Consultation with Our Sexual Abuse Lawyers Today
If you’re looking for a new attorney for a sexual abuse case, Shrader & Associates, L.L.P., welcomes you to contact us today for a free consultation.
Our consultations are entirely confidential and don’t require you to make any decisions. We will aim to help clarify your situation and options, so you can make a decision that feels right.
Feel free to contact us at 866-262-8170 or via our online contact form.