First off, before you give up on your lawyer altogether, try writing him a letter, explaining the problems you’re having with him. A formal communication of this sort may get his attention. Bear in mind that clients and lawyers frequently get frustrated with each other right before and during trial (when both client and lawyer are anxious and irritable)—and this type of friction can often be worked out.
When it does become necessary, it’s pretty easy to dump your lawyer. You can just say: “You’re fired,” or words to that effect. However, if your lawyer has come to court on your behalf and “made a general appearance” (gone on record as your lawyer), then she has to get the judge’s permission to withdraw from your case. And the judge will want whoever’s taking over to “substitute in as the new attorney of record.”
If you’re just switching from one private attorney to a different private attorney, the lawyers themselves will handle the paperwork.
If you’re firing your attorney and planning to represent yourself, then the judge has to hold a Faretta hearing to decide whether you’re competent to do so (see Representing Yourself).
If you’ve got a public defender whom you don’t like, it can be difficult to get a different court-appointed lawyer. First, you should try talking to your attorney’s supervisor about it. Even if you’re not given a new lawyer, the one you’ve got may work harder, knowing that the supervisor is paying attention. If this is not satisfactory, you can ask the judge to appoint a different attorney, but judges are reluctant to do so, particularly if you’re close to trial. You may have to convince the judge that your public defender has behaved really inappropriately or else completely ignored you, and there’s no way you can work together effectively. It will help if you keep a list of your lawyer’s offensive or inadequate actions and statements, and write letters to your lawyer describing the problem you’re having with him (keep copies, of course).
If you change lawyers, it will almost always delay your case. The new lawyer will want to ask the judge for a continuance (extension), in order to digest all the information in the case and undertake tasks that the old lawyer didn’t do.
If you fire a privately retained lawyer, you don’t necessarily get any of your money back. Most fee agreements state that the fee is non-refundable. If you’re parting from your lawyer on reasonably friendly terms and she hasn’t done much work yet, you may be able to negotiate a partial refund—but don’t count on it.
If you’ve fired your lawyer, he’s required to give a copy of the file he created for your case to the new lawyer (or to you, if you’re representing yourself). It’s illegal for an attorney to hold the file hostage, even if you owe him money.
Suing Your Lawyer
Suing your lawyer is tough. The legal system is run by lawyers and by judges (who used to be lawyers), so they tend to take the attorney’s side. To win, you’ll need a lawyer who has expertise in “attorney malpractice” litigation. Malpractice suits against lawyers tend to be based on mishandling money, negligence, missed deadlines, conflict of interest, or sexual harassment. If this is going on in your case, be sure to document it thoroughly.
If it’s not feasible to sue your lawyer, you may want to file a complaint with his state bar association. This may or may not result in any disciplinary action, but at least your statement will be kept on file and may help some other client in the future prove that this attorney has a consistent pattern of misbehavior.
Other lawyer related articles:
- Selecting a lawyer
- How much to tell your lawyer
- Having a productive meeting with your lawyer
- Maintaining Confidentiality
©2007 Katya Komisaruk
Republished by permission from the Just Cause Law Collective