You have specific goals for your divorce, and you must have a lawyer who is prepared to achieve your objectives and will fight vigorously to attain them. You have one case and one opportunity to convince the court that your position is the correct one. If you aren't pleased with how your attorney is performing, you should move on before irreparable damage is done to your case.
Your Legal Relationship May Be Salvageable
Often the first sign that your attorney is no longer a good fit is a lack of communication. Your calls are not returned, your emails go unanswered, and no action is taken in your case. If you find yourself in this situation, it's worth trying to save the relationship if you believe the attorney is qualified and experienced.
People get busy, and everyone makes mistakes, so simply communicating your concerns can point out the problems, and your attorney can correct their behavior. It can be helpful to communicate this in an email or even in a hard copy letter, pointing out that your calls have gone unanswered, and you need to be kept up to date on your case.
If you get an appropriate response but then things return to the previous status quo, it is a clear indication that it wasn't just a busy time for your attorney or a one-time mistake. A pattern of this behavior is a sign that it may be time to move on.
When Should You Fire Your Lawyer?
There are a variety of indicators that you need to remove your attorney and find someone better suited to you and your case:
- Unfamiliarity by the attorney with some types of assets you hold and no previous experience handling them
- Repeatedly rescheduling meetings or court appearances without a good reason (occasional schedule conflicts are normal, but constant rescheduling is not)
- Repeated requests from the law office for you to provide the same documents or information
- Phone calls or emails not being returned within 48 hours
- Missing deadlines set by the court
- Missing court appearances without notifying the court
- Improper behavior towards you including flirtation, sexual advances or degrading or bullying comments or behavior directed towards you
- Failure to regularly bill you so you can see what your costs are
- Ethical concerns about the methods your attorney is using in your case
- Documents or information you have been promised that never appear
- Disagreement about your bottom line goals in the case
- Deviation from what you have agreed they will ask for or do without an explanation
- Continually disorganization or confusion concerning your case
- Being completely out of their league when it comes to the issues, assets, and concerns in your case in comparison to your spouse's attorney
- An unwillingness to work with other team members, such as your accountant, business manager, and financial advisor
- An inability to remember key facts about your case
- An inability or unwillingness to give you a straight answer about what kind of outcome to expect in your case
3 Things You Should Not Fire Your Lawyer Over
All of the above items are real concerns that indicate a change in counsel is necessary. There are other situations that clients sometimes find annoying or upsetting, which by themselves do not mean you should make a change:
- Your attorney sometimes has a legal secretary, assistant, or paralegal call you. You want your attorney to stay focused on the big issues and to use their skills to your advantage. As an important client, you do warrant frequent direct calls from your lawyer, but it's in everyone's best interests if the law firm staff can handle the less complicated matters.
- Your attorney is cordial with your spouse's attorney. Attorneys are co-workers, and there are a select few skilled attorneys handling high net worth divorces. The pool is small, and they work together frequently. They can be pleasant to each other in the hallway and meetings and still vigorously represent you. In fact, knowing the opposition so well gives your attorney a leg up so they already know the other side's weaknesses.
- Rulings against you. There may be temporary orders for child custody, child support, or spousal support put into place while the case is ongoing, and those orders might be in opposition to your position. Your attorney will make the best argument possible in your case. Often when it comes to initial orders, the judge does not allow a lot of evidence to be presented and makes assumptions about your family.
How to Fire Your Lawyer
No matter how distressed or concerned you are with your current lawyer's performance; you should not fire them until you have found new counsel. You must not leave yourself unrepresented at any point during the case, as there are important deadlines that must be met at various times. Begin the search for your new attorney and make a thoughtful selection before you discharge your existing counsel.
Your new attorney can advise you as to the best way to fire your current lawyer, but in general, it's best to do so in writing via certified mail with a receipt, so you have proof the termination was sent. While it can be tempting to express your anger or frustration at the attorney you are firing, it doesn't help your situation and may delay the transfer of files and level of cooperation you can expect.
The Court's Role in Your Change of Attorney
While it is within your rights to have your choice of legal counsel, the court has ultimate control of your case. To obtain a new attorney for your case in New York state, your existing attorney of record must file a written request with the court to be removed from the case. The court must then approve that request. Getting your existing attorney to file this could be a challenge, but you should ask your new attorney to handle that for you.
Court approval is generally not a problem. However, a court could refuse the request if you have changed attorneys before, and it appears to be used as a delaying tactic. The court could also withhold consent if the case is nearing completion or is at a key moment. For example, if testimony has been underway for several weeks, a change of attorney could create a significant delay.
When possible, your attorney-client relationship should be saved. However, when you are certain you no longer wish to work with your attorney, we at Bikel Schanfield are prepared to work with you on your case.