California attorneys owe the utmost fiduciary duty to you, their client. That means that you absolutely have the authority to tell your attorney whether you will accept or reject any settlement offer that your former employer puts forth. Sampson vs. State Bar, 12 Cal.3d 70 (1974). Attorneys may have their own agendas as to whether you should accept or reject a case (usually involving personal financial interest in the cost of pursuing it or gaining a large fee from a great result). An attorney may not continue to pursue a lawsuit on your behalf if the case can’t be sustained under existing law (or a reasonable belief that the law is wrong and can be changed by your case), or it is being pursued out of an attempt to harass or vex the other side. Continuing to pursue a case in bad faith could violated California Rules of Professional Conduct 3-700(B). An attorney should withdraw if the lawsuit, defense or appeal is being done without probable cause.
Should it be necessary for your attorney to withdraw from representing you in your employment law case, he or she must take reasonable steps to protect your interests, including giving you the client reasonable notice and time for you to find alternative counsel. Be sure to discuss time limits for filing statutorily-required claims, such as with the Department of Fair Employment and Housing. If your attorney can’t afford the cost of the litigation he has undertaken on your behalf, then it is probably in both your interests to part ways. The attorney who can’t afford to properly litigate your case is not someone who should be on your team (almost all employment cases are taken on a contingency, which means your attorney pays all costs as they are incurred). If you change attorneys through no fault of your own, then it is possible that your attorney will only be entitled to the costs he has incurred on your case and not be entitled to an attorney fee at all. And, if your attorney is entitled to a fee , it will be a part of the second attorney’s obligation to pay it out of his share. Otherwise, a client would not pursue litigation if each attorney took their contingency fee of 13/d to 40%.
Learning lesson, employees of California: Always discuss reasonable settlement expectations with your proposed choice of counsel before you sign on the dotted line. If there are going to be valuation disputes, get them out of the way early or move on to new counsel. We would be happy to chat with you about any valuation issues you might be having in your case, whether represented by counsel or not. Give me a call! I’ll discuss it with you at no charge or obligation. Stephen Danz are proud to be California’s largest employee-only law firm. Steve 877 789-9707.