By Jeff Curl, San Francisco Bankruptcy Attorney

Yes, you can fire your bankruptcy attorney. I can only speak to California law since this is where I am licensed. Here, clients can fire attorneys at any time, for any reason. Attorneys must show “cause” for firing clients, such as non-cooperation, or refusal to pay bills, though there are exceptions, and exceptions to the exceptions that we need not get into.

I’ve experienced a steady uptick the last two years or so of taking over bankruptcy cases that have been mishandled by attorneys. This is not to suggest that I am claiming perfection or superiority. As one judge told me at a hearing on a case I took over with some complications, we can all look back with 20-20 hindsight and pick apart each bankruptcy filing and strategy behind certain decisions.

How to fire your bankruptcy attorney

Be firm, but civil. Re-read your attorney-client contract first. The attorney may be entitled to keep part or all of the retainer you paid for opening the file and performing work. Demand in writing an immediate refund of whatever funds you are entitled to. Do it in a manner that is traceable, such as certified mail or by fax (better yet, both). Also, ask for a copy of your file, including electronic copies of any relevant documents which can include a draft of your bankruptcy petition.

Every law firm is different. Some still use lots of paper, some are almost entirely paperless like our firm. There are a handful of bankruptcy preparation software companies. For example, we use Best Case, the most popular software. We have taken over cases where the prior attorney used Best Case as well. Sometimes that can provide us a head start. Sometimes the preparation was so bad, it’s easier to just start over. But ask for everything you can so your next attorney can get a handle on what has happened.

The three types of bankruptcy attorney mistakes I see

The mistakes I see generally appear in three forms: (1) the attorney was inexperienced with handling the issues particular to that case; (2) the high volume attorney that chronically mishandles cases from lack of communication at the outset to sloppy preparation of the bankruptcy schedules and forms throughout the case, and; (3) highly complex matters where a particular strategy or set of decisions created negative and unintended consequences.

• The inexperienced attorney

As far as inexperience with a particular issue, this problem exists for the freshly minted first-year attorney, the thirty-year veteran, and everyone in between. Certainly, it exists more for the inexperienced practitioner who just has not had the opportunity to see many scenarios. But I was recently involved in a case with a fairly experienced bankruptcy attorney that made the mistake of not keeping up with amendments to the bankruptcy laws, and he advised his client that a certain debt was dischargeable. It was not. This was one of the few cases where I represented a creditor, and I filed a complaint to determine that the debt was nondischargeable and prevailed. That bankruptcy attorney is now facing an aggressive malpractice claim, among other issues.

It’s okay to ask your prospective attorney how much experience he or she has with your particular scenario, and bankruptcy cases as a whole. Unfortunately, this is not fool-proof, because this attorney advised the client incorrectly, and she had no reason - as far as I could tell - to doubt his advice.

• The volume attorney

The high volume sloppy attorney causes the most problems by the sheer amount of cases this attorney handles. Some attorneys market aggressively and are able to file a high number of cases because their website ranks high, or they use referral services that funnel clients to them. If these attorneys put half the effort in becoming a good attorney that they do in landing the client, they might actually be competent. Make no mistake about it, some high volume filers do good work, but many don’t.

Refugee clients that come from these attorneys often describe feeling uncomfortable at the outset. The first meeting often does not feel like a legal counseling and information gathering session, but more like a sales job; I also often hear clients describe dirty offices. Go with your gut. If you feel that you are not entirely comfortable with the attorney and staff, get out of there. Filing bankruptcy is too important legally, personally and financially to entrust it to someone you don’t trust yourself.

• The complex cases

I have clients show-up constantly with all kinds of complex issues: litigation, potential criminal problems, property and divorce disputes, fights over rights to a business, transfers of assets - endless scenarios. It’s okay to ask the attorney if they have experience with whatever issue you are facing. You may present a situation that no attorney has ever encountered; as much as people want to believe that bankruptcy is filling out a bunch of forms, rinse and repeat, it’s not. That’s why there are thousands of court decisions issued each year deciding bankruptcy disputes, some never seen before.

You should appreciate it when the attorney says “I don’t know” to a question you ask, if your question is novel in some way or beyond that attorney’s knowledge. Too often, attorneys who want to be problem solvers and client pleasers, answer something they should not. Obviously, if you ask the attorney to explain the basics of a Chapter 7 bankruptcy, and he says, “no idea,” run away; run away fast.

This is another one where you trust your gut, backed by some cool reasoning. Some clients present me with issues where I do not know the answer. For example, one client had serious white collar crime and tax evasion issues. I know something about this, but that is a highly specialized area with potentially life-changing consequences. I referred that out to another attorney who was an expert. Another was a business case some years back that involved potential fraudulent transfer of assets, successor liability and other complications within the bankruptcy context. Some of it was new to me, some of it not. The key was telling the client I was comfortable with the strategy on some parts, but uncertain as to other parts. The client said he trusted me to figure it out, I got smart on the issues, researching and consulting with colleagues and that case concluded with the client riding off in the sunset with a smile on his face.

If presenting a messy scenario to a new attorney, accept the fact that many attorneys may actually not be a good fit or may not want to get involved or may not know the answer. But there are a handful of good attorneys that can take complicated matters, and lead you to a solution.

Are you part of the problem?

If the attorney-client relationship has deteriorated to the point you want new counsel, ask yourself what your current attorney would say about it. I see clients come in and announce that the existing attorney is awful. Sometimes that is true. Sometimes the client is just a terrible client: hostile, uncooperative, deceptive or other qualities that make representing the client difficult, if not impossible. You have to be dead honest, and imagine me calling the attorney to talk about the case. What would that attorney tell me about you and your case?

What do you do now?

If you are actively seeking new counsel because an existing case is presenting you with difficulties that you believe are attributable to your attorney, I would recommend three things, in this order: (1) make an honest appraisal about whether it is the attorney’s fault, or whether you have contributed to the difficulties; (2) if firing your bankruptcy attorney is necessary, demand turnover of your file and monies owed to you, in writing that can be proved at a later date, and; (3) be honest with your next attorney to a fault, and don’t be afraid to walk away if the attorney is not a good fit.