Changing Divorce Lawyers: What Happens Procedurally

Every month I do at least one or two consultations with a person considering changing their divorce attorney.  The most frequent reasons for the possible change are usually any or all of the following:

1.  Loss of confidence in the attorney.

2.  Disagreement with the advice being given.

3.  Breakdown in communication (emails and/or phone calls not responded to)

4.  Excessive billing or inability to pay the legal fees properly billed.

5.  Lack of progress in resolution whether by negotiation or in court.

Once the person makes the decision to change their attorney it usual process is either the client discharges their existing attorney or the attorney files an Order To Show Cause asking the Court to discharge the attorney due to a "breakdown in the attorney client relationship".  Generally, and as with anything in the law there are exceptions, if the attorney files the request and the Court grants it there will usually be a 30 day stay (freezing of most aspects of the litigation but not the obligations to pay child support, spousal support, or custody/parenting schedules) so that the person has a chance to retain a new attorney without fear that the case is proceeding and they do not have counsel.

On the other hand, if the client discharges the attorney and signs a Consent To Change Attorney form without having hired a replacement attorney there is no stay and the case can move forward unless the judge decides to pause the case.  So there is a procedural difference between consenting to the discharge vs having the court approve the discharge.

Of course, if your attorney has to seek Court permission, they will need to explain what has caused the breakdown in the relationship, and I will usually advise potential clients that it is better not to have that information provided to the Court.  For example, suppose the reason the attorney seeks a discharge is because the client has made false and fraudulent statements to the Court and has told the attorney.  The attorney if not permitted to correct those statements will have an ethical dilemma and may want to terminate representation.

Changing attorneys is a big step and sometimes necessary.  When I am brought in to replace the first attorney I will obtain the file from the original attorney, review all documents, financial statements, correspondence, court orders, motions.  After this is done I will meet with the client to discuss the current status of the case, what needs to be done or what should have been done, develop a plan of action including planning for the next court date, review of any settlement proposals and the drafting of a response or a proposal if negotiations have not already begun.

The selection of experienced and well respected matrimonial counsel cannot be overstated.  Choosing an attorney that knows the law, can explain the law to you and who practices in that courthouse with those judges and other local attorneys is invaluable.  So often when I come in on a case, there is a sigh of relief even from the other side who might have found prior counsel unavailable or unwilling to properly negotiate.  Every case needs to be concluded and lawyers who can do that properly and efficiently are the best.