Can I fire my lawyer? How? Under what circumstances?

A client has an absolute right to discharge counsel at any time, with or without cause. What this means is that you could go to see your lawyer one day, not like his or her suit, and simply say, “You’re fired!” This would be a discharge “without cause.” You can also fire your lawyer because you don’t agree with his or her strategy, because you are dissatisfied with the quality of his or her work, or because of incompetence or non-responsiveness. These would be discharges “with cause.”

The difference between “with cause” and “without cause” firing of counsel may impact upon legal fee issues. However, even if you want to fire your lawyer because the sun rose in the east, you have every legal right to do so.

It is, of course, much more advisable to take care when retaining a lawyer in the first instance. It will be more expensive to substitute new counsel (who would have to be brought up to speed) than it would be to stay with original counsel. Try to get as much information as possible from your lawyer in the initial consultation, addressing issues such as accessibility, strategy, experience, fees and the like, before you select a lawyer you could be “living with” for up to a year or more should your divorce prove contested.

While you’re not “stuck with” a mistake in the selection of a lawyer, you should do what you can to avoid making that mistake in the first instance.

Regarding the manner of discharge, have a new lawyer lined up before you fire your first lawyer. That new lawyer can best arrange for the formal substitution (normally, just a simple one-page instrument) as well as for the transfer of your file. Because of the volatile nature of divorce litigation, it is best to no have any gaps in representation. However, if you simply cannot have your lawyer continue, write the lawyer and transmit by fax and certified mail:

“Dear Lawyer Smith:

In regards to my case, John Doe v. Jane Doe, Docket/Index Number XXXX/01, please be advised that you are discharged effective immediately. You are directed to do no further work on my behalf.

Very truly yours,

John (or Jane) Doe

cc: Court

cc: Spouse’s Lawyer”

What this does is stop your lawyer’s time clock so that no additional legal fees are incurred, and it advises the court (and a specific judge if one has already been assigned) and the other side that, for the time being, you represent yourself and that all notices should be sent to you. A transmittal letter should probably go to the court and the other side advising that you are currently representing yourself. Keep copies of all correspondence.

It is also a very good idea to keep copies of everything you give to your lawyer and your lawyer gives to you, just in case you wish to change counsel. The first lawyer may have what is known as a “retaining lien”, meaning he or she can keep your file until payment. If you have copies of everything, you make it that much easier should you need new counsel down the road.