Before firing your attorney, especially far along in the process, do me a favor? Have a meeting with them.
Not a screaming argument. A meeting. Ask to sit down and go over the things that are bothering you. Come prepared with a list of questions and concerns. Listen to the answers.
Sometimes great lawyers make a mistake in knowing how to communicate with a particular client. Sometimes they are doing everything right but they aren’t being clear with you so that you know it. Sometimes, and this is hard to hear…it is you. You might not be listening to what they are telling you because you only want to hear certain answers. A good lawyer will tell you the truth even if it’s the opposite of what the desired answer is. That doesn’t make the lawyer bad, or you bad. That makes the situation something to be overcome rather than enjoyed.
If the lawyer refuses the conversation, or if the conversation addresses none of your concerns, you can fire your attorney. It is not always easy to do this if you have a trial pending. Many lawyers will not step into a case that close to trial because it is difficult to get up to speed.
I once stepped into a case where another attorney had done nothing (which I confirmed with that attorney, who did not even realize that the trial was approaching) five days before trial. This is what I like to call “crazy”. There was a contentious matter related to child custody. I had to produce a trial memo and be ready to appear at trial in a really short period of time. I don’t recall sleeping much, but I did it, and I won the case. It probably only took one or two years off the end of my life.
I would not do this for every situation, and many lawyers wouldn’t do this for any situation, so it’s best to get rid of a lawyer you can’t stand early on in the process, rather than late, to give you maximum opportunity to replace them with someone you will like.
Also, the court may not permit withdrawal of an attorney, and sometimes they are required to give permission for that to happen. New Jersey Court Rule 5:3-5(d) says,
1) An attorney may withdraw from the representation ninety (90) days or more prior to the scheduled trial date or prior to the Early Settlement Panel hearing, whichever is earlier, upon the client’s consent in accordance with R. 1:11-2(a)(1). If the client does not consent, the attorney may withdraw only on leave of court as provided in subparagraph (2) of this rule.
(2) After the Early Settlement Panel hearing or after the date ninety (90) days prior to the trial date, whichever is earlier, an attorney may withdraw from the action only by leave of court on motion on notice to all parties. The motion shall be supported by the attorney’s affidavit or certification setting forth the reasons for the application and shall have annexed the written retainer agreement. In deciding the motion, the court shall consider, among other relevant factors, the terms of the written retainer agreement and whether either the attorney or the client has breached the terms of that agreement; the age of the action; the imminence of the Early Settlement Panel hearing date or the trial date, as appropriate; the complexity of the issues; the ability of the client to timely retain substituted counsel; the amount of fees already paid by the client to the attorney; the likelihood that the attorney will receive payment of any balance due under the retainer agreement if the matter is tried; the burden on the attorney if the withdrawal application is not granted; and the prejudice to the client or to any other party.
All of this is fancy talk for “sometimes you need a judge’s okay.” Seek the opinion of your potential new attorney on how to go about applying this rule and whether it is possible. In my experience, judges will generally permit changes as long as it does not prejudice the other side and you show that there is good cause.
–Excerpted from Lynda’s new book, Breaking Up: Finding and Working with a New Jersey Divorce Attorney.
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The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.