Can my attorney charge me 40% if he never filed suit and was suppose to be 33.3%?

You should demand an arbitration.

I cannot answer your Question as to whether your attorney can charge you 40% rather than 33.3% without more information. The written agreement you signed, and specifically what it says about the fee you will be charged, when you hired your attorney will determine how much your attorney is entitled to. If the fee agreement requires your attorney to file a lawsuit to be entitled to 40% and your attorney did not, in fact, file a lawsuit, then he or she would only be entitled to 33.3%. If the attorney did file a lawsuit then he or she would get 40%. If the fee agreement addresses the scenario in which a lawsuit was already filed when you hired your current attorney then that would govern how much your attorney is entitled to. For example, if the fee agreement says that the attorney is entitled to 40% if a lawsuit is filed, but does not specify who has to file it, then the attorney would get 40%. If the fee agreement does not specifically address this scenario then it could go either way depending on a number of factors, including, but not limited to the exacting wording of the fee agreement and possibly any discussions you and the attorney had about the fee when you were hiring the attorney. DISCLAIMER: This response should be considered general in nature, for information purposes only and should be used only as a starting point for addressing legal questions and issues. It is based on the limited information provided and, in some instances, makes certain assumptions. It is intended only for cases involving Nebraska and Nebraska law and is not applicable to any other state or jurisdiction. The author does not warrant the accuracy or validity of the information contained within this response, and hereby disclaims any liability to any person for any loss or damage caused by errors or omissions. In addition, this response is not a substitute for professional legal advice and does not create an attorney-client relationship, nor should it be considered a solicitation for additional legal advice or legal representation. If you ignore this warning and convey confidential information in a private message or comment, there is no duty to keep that information confidential or forego representation adverse to your interests. You should seek the advice of a licensed attorney in the appropriate jurisdiction to fully discuss your case. You should be aware that there are Statute of Limitations (the deadline imposed by law within which you may bring a lawsuit) as well as other requirements and/or limitations that limit the time you have to file any potential claims you may have. This response may be considered advertising in some jurisdictions under any and all applicable laws and ethical rules. The listing of any area of practice that the author practices in does not indicate any certification or expertise therein, nor does it represent that the quality of legal services to be performed would be greater than the quality of legal services performed by other lawyers. It is merely an indication by the author of areas of law in which he practices. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. Readers are urged to make their own independent investigation and evaluation of any lawyer being considered.

Not if the contract doesn't provide it.

I would have to read the fee agreement, but it sounds as if he should get the fee agreed to for settling without filing suit.

In Michigan, the Supreme Court has limited lawyers fees to 33 1/3%. Other states have different rules.

Have your current attorney advise you. You may have grounds to file a bar complaint for his inactivity.

The fee is governed by the contract you signed. If the specific language indicates that he gets the increase upon his filing of a suit, it sounds like you get to keep 67%, not 60%. You need to write to him stating so and instructing him not to disburse any funds until the dispute over fees is resolved (or that he can retain 33% but must retain 6.67% in his client trust account until your dispute is resolved).

Contact the MI State Bar if you have a billing dispute with your attorney. This is quite common.

The words of the contract control. The bar has a fee dispute committee you can complain to if need be.

Attorney fees in California are always subject to negotiation. You can "dispute" any fee agreement and then the fee will be held in trust until the issue is resolved.

He can only charge you what is provided in the retainer agreement.

If he never filed suit than can't charge you 40%.

Assuming you are reading your fee agreement right, and it says 40% only after your new attorney files suit, it sounds as though you should be liable for 33%, not 40%. If talking calmly with your attorney doesn't get you results, you can write your attorney stating your position (in logical and reasonable terms the letter will be evidence later) and asking him to refund the disputed amount or otherwise keep it in his trust account until the dispute is resolved, as he is required to do anyway. Then contact the local county bar association and file a petition to arbitrate your fee dispute. The bar association will have a form to fill out and file, and will charge something for the arbitration, based upon the amount in dispute. The attorney will have to participate in the arbitration, and a panel of one or three arbitrators will decide the matter after arbitration, including who should bear the cost for the arbitration. You may have an attorney represent you in the fee dispute, but that would just eat into your disputed amount. The arbitrators know how to handle these things with unrepresented parties that's very common.

If your current atty "dropped" the first lawsuit that is litigation which probably would trigger the higher amount. In any event, most State Bar Associations have a fee dispute resolution procedure. Call the state bar office and see if they do. If so, get the information, but don't file anything until you call your attorney and tell him you would like to use the service. This may trigger a compromise that you and the attorney can agree to.

If he dismissed the lawsuit after taking over the case from another lawyer, and never answered interrogatories, or went to depositions, etc., then he should only charge you 1/3.

Your statement of facts isn't very clear, but what I took from it is that you hired two attorneys. Your first attorney, in your opinion, screwed up so you fired him. You then hired a second attorney and he successful brought your claim to settlement. I'm not sure if the 40% you are referring to is for the first attorney or the second. However, the contract you entered into with each attorney will control your situation. Your first attorney is only entitled to the reasonable value for his fair share of work since you fired him and he never brought your case to either settlement or a successful jury verdict. Do you have to pay him the 40%, no. Do you have to pay him something for the work he did, probably. How much, well you need to pay him a reasonable amount for the work he provided. If he didn't provide you with any work or just totally screwed up then maybe the value of the services he did provide is $0. As for your second attorney, he is entitled to whatever you agreed to pay him. If that's 40% of the settlement then that's what you need to pay him. However, I would have our second attorney try to resolve the payment issue with your first attorney.