The decision to change your representation can be difficult to make, but a switch may ultimately be better for your interests and the resolution of your case. While going through the emotional ups and downs of a divorce and coping with the loss of control that this process brings to your life, it can oftentimes be difficult to make key decisions about your case. Still, before choosing to take the gloves off and bring in the pit bull to handle your divorce, consider these guidelines relating to the when, why, and how of switching your attorney. Whenever, wherever. You have the right to change your attorney at virtually any point during your divorce proceedings. Your retainer agreement does not require you to keep your present attorney indefinitely especially when you don’t think it is working out. The rare instances where you might be prohibited from changing your counsel are if you are close to trial or in the middle of a trial. In that situation, you must get the approval of the judge in order to ensure the change will not delay the trial or cause an unfair disadvantage to your spouse.
What’s my motivation?
Before deciding to make a change, however, it is important to ask yourself why you think this would be a good decision and what dissatisfies you about your current attorney. There are plenty of reasons why clients choose to switch their attorneys. The attorney and client may disagree on how the case should be handled. The attorney might not be keeping costs and fees reasonably controlled. The attorney might not be keeping the client well informed on the progress of the case, nor returning phone calls and letters in a timely manner and paying enough attention to the case in general. Personality clashes may simply make doing business with the attorney too unpleasant to be productive. If the attorney’s style is too aggressive or not as aggressive as the client would like, a change may be warranted. If your attorney appears disorganized or overcommitted and cannot give your case the attention needed, a change may be due.
What’s my need?
If your attorney is out of his league in comparison with the other attorney, it may pay to upgrade and hire an attorney with more experience or specialized skills. This may involve paying a higher hourly rate, but in many cases, you get what you pay for, and a high quality attorney can often get the job done more effectively. Mistakes made can be extremely costly, both in the short and long term. If you need a real “fighter” but choose an attorney who prefers to settle, you will feel unrepresented. If you want to settle, but choose an attorney who prefers not to explore settlement, you may feel betrayed and abused (fighting can be expensive and should only be resorted to when other options are not feasible.) Either way, it is you, and not the attorney, who has to live with the end result.
If you know your divorce is likely to end up in court, choose an attorney who is an able litigator who can take you through the whole process competently. You need someone who is well prepared, able to negotiate where possible, but able to go the whole way if needed. Good, sound judgment and knowing when to fight and when to settle is probably the most important skill that your attorney should possess.
If you are uneasy because there is no synergy and trust with your attorney, you need to talk about your concerns openly with your attorney, and if things don’t improve, move on. If you are reluctant to change attorneys because you have invested so much with your current attorney, remember that bad representation is often more expensive in the long run. If you are afraid of hurting an attorney’s feelings, don’t be. Attorneys are professionals who understand that not every combination of client/attorney is a good one.
Whatever the reasons you have for concern, consider talking them over with your attorney to see whether or not the issues can be resolved. Try to be realistic about your own demands and contribution to the problem. Are you acting irrationally and expecting your attorney to perform miracles and achieve results that no attorney could be expected to obtain? Beware of listening to your spouse who may try to persuade you to ditch a very competent attorney under the guise that the case would be settled quickly without them. It’s tempting to give up the struggle and try to settle with your spouse without your attorney, but if your spouse is more powerful and a better negotiator you could regret that decision.
How it’s done
Once you make the decision to change attorneys, you need to contact your current attorney and notify their office that you have appointed another attorney or have your new attorney do that on your behalf. Your file needs to be transferred over to the new attorney’s office. Your new attorney will prepare a document called a Substitution of Counsel. This document officially informs the court and the other parties that you have a new attorney and requires signatures from your new attorney, and the previous attorney.
If there’s trouble
While most attorneys will sign the Substitution of Counsel and send your new attorney your files, on occasion some attorneys may not cooperate. This may be because you still owe money or due to the attorney’s tardiness. Your prior counsel may not prejudice your case by holding your file if work needs to be done.
It’s in your hands
The decision to switch attorneys can be a difficult one, and it is important to make sure you are doing it for the right reasons. You should carefully interview and scrutinize a substitute attorney because switching attorneys numerous times can make reputable attorneys think twice about accepting your case. Avoid creating the impression to new counsel and the Court that you are impossible to work with. Feel free to obtain a second opinion if you are in doubt. It’s your right and you need to do what is best for your situation, your protection, and your future.