Is it time to switch attorneys?
When going through a divorce, your attorney serves a vital role in helping you navigate the process and acting as a buffer between you and your soon-to-be ex-spouse. But not all divorce attorneys are created equal. It’s important to find an attorney who properly understands your needs, listens to you, satisfactorily and timely answers your questions, and helps to move the procedure along as quickly as possible while keeping your best interests at the forefront.
Ideally, the first attorney you retain will be the right fit for you, but sometimes incompatibility doesn’t reveal itself until weeks or even months into the proceedings. If you’re starting to doubt that you’ve made the right choice of counsel, the first step is to make sure your dissatisfaction is with your attorney and not the process: ask yourself, is it that your attorney is not meeting your needs and/or expectations, or that you are frustrated with factors outside of their control, like, for example, the conduct of opposing counsel or scheduling delays of the Court? In highly emotional situations like divorce, it can be easy to get overwhelmed and start blaming your attorney if you feel things aren’t going your way, but that blame may be misdirected if you don’t take the time to identify your specific concerns..
Do you feel your attorney doesn’t share new updates or brushes you off? Do you get the sense that your case isn’t a priority for them? Are you concerned they are not advocating for you zealously enough with respect to the arguments they suggest or the work product they prepare? With so much at stake, you should have confidence in your attorney and their game plan, and if you do not, it may be time to consult with other attorneys to determine whether someone else would be a better fit. Here are 6 red flags to look out for to know if it’s time to move on and switch attorneys.
Signs That its Time to Switch Attorneys
Keeps you in the dark
Your attorney should ensure that you understand all developments in your case as well as the overall process of the divorce and the individual steps along the way. No correspondence of any substance should be sent on your behalf without you having the opportunity to review it first, no filings should be submitted without your prior review and consent, and all communications received by your counsel should be timely forwarded to you. Any questions you have for your attorney, whether asked in an email or via voicemail, should be promptly responded to. Any important dates for your case, including court appearance dates, filing deadlines, discovery deadlines, should be communicated to you so that you can plan around them. If you frequently feel that you do not know what is happening in your case, that may be the sign of an attorney who is not keeping you informed..
Refusing to listen
You should be confident after a conversation with your counsel that they understand how you want to proceed and pursue that path. If your attorney is pressuring you to accept terms you don’t like or to take positions with which you are not comfortable, they may not be hearing your priorities or concerns. Similarly, if your counsel adopts positions that are contrary to what you understood you had agreed to, your attorney-client communication is ineffective. Your lawyer’s job to provide information, make sure you understand your options and establish reasonable expectations of potential outcomes in your case. Having provided that guidance and information, it is you who will then make the decisions with which you are most comfortable, taking into account your attorney’s advice, and your attorney should hear you when you articulate what they are and advocate for you accordingly.
Despite what you may have seen on TV, a larger-than-life attorney personality doesn’t necessarily mean that your case will be a slam dunk in court. Having an attorney who listens to you and treats everyone involved – from your accountant to your spouse to opposing counsel – with respect is crucial, especially if you are in the middle of a child custody dispute or struggling because you aren’t receiving appropriate child or spousal support. Bullying and bluster are rarely signs of strength in a matrimonial case; instead, an attorney who has a good reputation among the relevant bar and is known for adopting reasonable positions is more likely to have the credibility with opposing counsel, the attorney for the children, and even the Court when advocating on your behalf.
Be aware of small signs of potential misconduct by your counsel that may indicate a larger issue, including arriving late or failing to show up for meetings or court appearances, frequently asking for extensions for unspecified reasons, missing deadlines, misstating facts from your case in arguments or written submissions to the court or to opposing counsel, or filing deficiencies. Other attorneys and the courts notice this kind of behavior and your positions may be tainted by the appearance that your counsel is at best sloppy and at worst unethical.
Lack of transparency about billing and expenses
Your attorney should be upfront about the different fees and costs associated with their representation, as well as answer any questions you might have about the billing process. A respectable attorney will give you a clear idea of what their firm’s rates are and how they will be billed, including with regular invoices showing detailed entries of the time charged each day and realistic discussions about the cost of different actions of the case like making a motion, taking a deposition, subpoenaing third party documents, etc., so that you are aware of and understand costs as they accrue.
It is not uncommon for people to change counsel during their divorce process. Finding a new attorney is possible and can be a positive development in your case if you understand what did not work with your prior counsel and seek out someone who is better suited to address those concerns. Keep in mind that the timing for changing counsel must be considered to ensure you are not prejudicing yourself by attempting to change at an inopportune time. For example, if you are in the midst of or on the eve of trial, the court may not allow you to switch attorneys and, even if they do, you may be harmed by having counsel without the institutional knowledge of the case up to that point. It is best to consult with alternative counsel as soon as you begin to have concerns about your counsel to ensure that if new counsel would alleviate some of those concerns, there is still time to make the switch without delaying or prejudicing your case.
Kelly A. Frawley and Emily S. Pollock, partners at Kasowitz Benson Torres, are leading matrimonial and family law practitioners who regularly handle complex financial and custodial matters involving divorce, distribution of marital and separate property assets, custody, parenting time, child and spousal support and paternity. www.kasowitz.com