Hi I recently released my attorney after 11 months because she did not
fight for  custody and child support of my children since they live
with me because my wife left the house some 11 months ago.  She now
wants me to tell her my new attorny so she can file with the courts a
"substitution of attorney" form.  I haven't retained my new attorney
yet because he is on vacation. How much time do I have to get another
attorney and can I recieve my files from my attorney without it
costing me money.

Regards

Ralph

Hi, first, I would not suggest that you represent yourself in such an
important matter. Family court judges are usually strongly focused on
the best interests of the child/children but you can still get into
trouble with the fine print if you don’t have competent legal advice.

Your immediate problem appears to be getting your records from your
previous attorney and this will probably cost nothing. I have had
experience with a lawyer who simply sat on a case and was in danger of
missing court-imposed deadlines for filings and we simply made an
appointment, fired him, and he handed over the files. There might be
some reluctance to do this, but that would be unusual since those
records are actually yours and at the worst there might be some
copying fees.

It’s not particularly well known but despite the fact that they have
easy access to the courts, in many instances it’s easy to stiff a
lawyer on their fees. That’s one of the reasons they want a retainer.
This means that if the present lawyer demands a fee for transferring
the documents you can probably just ask to be billed and ignore the
bill if and when it arrives. In fact, taking personal possession will
probably be cheaper since transferring them to another lawyer will
normally involve a courier and some perfectly legitimate related costs
– these are confidential records and your lawyer can’t (or shouldn’t)
simply toss them in the mail.

Now, your next problem is substituting attorneys. This will actually
be up to the judge to decide if you are in the middle of a complicated
case but, unless you have a scheduled court date in the very near
future which will require you to appear and there haven’t been
interminable delays which would have annoyed the judge, there
shouldn’t be any time limit on when you notify anyone about this. That
is, you should do this promptly when you hire a new attorney but if
this is just a matter of a few days or so just wait and ask the new
attorney what to do. In the mean time simply inform the attorney you
are firing about the other one being on vacation – you can’t
substitute anyway until the new lawyer accepts your case.

You don’t give your location so I can’t provide a specific contact but
everywhere I’ve ever been there were lawyers advertising that they
would give a free consultation, often over the telephone and answer
simple questions such as the one you have about substitution time
limits.

Although this isn’t something you need to concern yourself with
personally, I thought you might like to see what your lawyer is
talking about. Here is a link to a substitution of attorney form and,
although it is actually for a federal bankruptcy court, it is still
basically what she will be filing:
http://www.iasb.uscourts.gov/asp/filing/download.asp?recordid=33

Specifically the form is at:
ftp://www.iasb.uscourts.gov/iasb_ftp/Forms/Sub_atty.pdf

As you can see this is just bookkeeping so the court knows who to
notify of any actions. Until you actually retrieve your files from the
present attorney and formally terminate her services, she remains your
attorney of record and is obligated to inform you promptly of any
communications she receives from the court.


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Good luck with your problem. I have found that most attorneys are so
busy that they don’t mind a small client leaving and you should
experience no problem with this transition.  It may help to remember
that all these lawyers depend on having a good working relationship
with each other to speed their work. I hope this information has
proven useful and that it answers your needs. If so I hope you will
take a minute to give this answer a rating you feel is fair. Above all
I suggest that if you have any further concerns you avail yourself of
any free introductory offers by local lawyers to ask them about any
concerns you have over getting your files from your present attorney
or about time limits on notifying her of any change so she can file
substitution papers.

As usual, please bear in mind that this is just general advice and
should not be considered legal advice as such, nor relied upon too
far. If for no other reason than the fact that things can vary greatly
from state to state and I don’t know where you are located, not that
it should matter for such a basic question.

Thanks so much. Outstanding detail and clarity in the answer to my
question. Very quick response.  Nice to know I can get this type of
advice where it won't hurt my pocket. I'm sure I will be asking more
in the future. Thanks to all.

Regards

Ralph

Dear Ralph,
It is always a difficult decision to part ways with a professional
advisor, of any stripe. However, it sounds like both you and your
(soon-to-be) attorney are like minded as to a parting of the ways.

1.  There is no "time limit" per se that I am familiar with. So long
as you have not acted to substitute another attorney and so long as
your current attorney has not filed and received the court's
permission to withdraw, she is "in" the case and has a duty to
zealously represent your interests. The important thing to take from
this comment is that your current attorney may ask the court to
withdraw, and the court may approve such a request.

2.  As to substitution, so long as your current attorney hasn't
withdrawn, you can substitute at any time, although the court may have
a problem with substitution if it will cause some prejudice to the
other side or result in a delay to the proceedings that the court
feels would not "further the interests of justice."

3.  You have two options as far as substitution: (a) you can
substitute another attorney, or (b) substitute yourself as a "pro se
litigant" (also known as representing yourself "in pro per."  There
are cases where the (b) option is appealling to a litigant, although
it is generally to be avoided since pro se litigants are at a distinct
disadvantage in litigation - a common saying is the law is the easy
part; the court rules are what eat you alive.

Good luck,
weisstho-ga

Mr. Weiss provided sound general guidance for your situation. At the
same time, the question, "How much time do I have to get another
attorney and can I recieve my files from my attorney without it
costing me money." seems to have been answered only in part. While the
initial suggestion that there is no time limit, as qualified by Mr.
Weiss's caution about prejudice to the other party, is sound, the
question remains of how to get your files.

The exact terms upon which you can get your files will vary from state
to state, as the rules are usually defined to some degree by a state's
rules of ethics governing attorney conduct. Typically a lawyer must
turn over the documents which are your property, or which you require
in order to protect your interests in the continuing legal
proceedings. This does not mean that you can necessarily get the
entire file. If the lawyer has, for example, created documents
(briefs, motions, etc.) which have not been filed, and has not yet
been paid for preparing those documents, the lawyer probably doesn't
have to turn them over. (An exception might exist if the lawyer
attempts to withdraw on the eve of a filing deadline for a brief or
motion response). Until the attorney is paid for his work product, the
documents he creates are his property, not yours.

Also, if the lawyer has paid for documents (e.g., transcripts, or
copies of a file from out-of-state proceedings), the attorney is
entitled to be reimbursed for the cost before turning them over.
(Again, an exception might apply if a court required that document to
be filed, and the client doesn't have reasonable opportunity to get
another copy before the filing deadline - but even then, the client
would ultimately have to reimburse the attorney for the expense.)

That's what we're here for, glad we could help.

Thanks for the nice comments.