11 Oct 17

Can we start the divorce over if I get a new lawyer?

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You may be frustrated with the manner in which your divorce case is proceeding. Part of your frustration may center around what you perceive as the performance of your attorney. If that is the case, you may be pondering getting rid of your current attorney and wonder what will happen if you do so. You may even wonder if you replace your lawyer with a new one, can you start your case over.

Replacing a Lawyer in a Divorce Case

You may have a reached a juncture at which you feel the need to replace your attorney in your divorce case. There can be a myriad of reasons why a person elects to change attorneys during the midst of divorce proceedings.

As a general rule, unless there is demonstrable misfeasance or malfeasance on the part of your attorney, your divorce case will temporarily be put on pause to allow time for your new counsel to get on board and become familiar with the case. What will not happen is a reset of your case. What will not happen is starting your case over from the beginning.

A moment ago, reference was made to attorney misfeasance or malfeasance. The circumstances surrounding what happens in the event your attorney has engaged in some sort of misconduct in your case does have an impact on what happens in regard to your litigation when a new attorney gets on board.

Although highly unlikely, there are rare circumstances when a divorce lawyer has engaged in such significant misconduct that a court will reevaluate what has occurred in the case to date. The court may rescind decisions previously made because justice warrants that type of action because of the misconduct of a party’s attorney. In other words, the court can do something like a start over when attorney misconduct is so severe and pervasive it has impacted the decisions made to date in a divorce case.

The Model Standards of Practice for Attorneys

The American Bar Association has promulgated what it calls “Model Standards of Practice.” The include Models Standards of Practice for divorce attorneys.

The Model Standards of Practice set forth what an attorney should or should not do when representing a client in a divorce case. Each state has its own code of professional conduct for attorneys, which oftentimes is similar to the Model Standards of Practice.

Reviewing the Model Standards of Practice can provide you some insights into what your attorney should be doing in your case. The Model Standards of Practice can assist you in making at least an initial determination as to whether or not your legal counsel is representing you appropriately in your divorce case.

Consult with an Attorney

If you truly are dissatisfied with your legal counsel, and desire to find a replacement, you need to begin the process that permits you to consult with and ultimately hire a new attorney. Another attorney will face limitations in what he or she can consult with you about while you are still represented by counsel. However, you likely will be able to have at least a preliminary meeting with a potential replacement lawyer.

Once you have started this process, you will need to prepare written notification that desire to terminate your existing divorce lawyer. You need to keep in mind that the court will be involved in the termination process.

When you provide notice to your attorney of your desire to terminate his or her services, that legal counsel must then file a motion to withdraw from the case with the court. You need to clearly understand that the court does not have to permit an attorney to withdraw from a case. Indeed, a court will be reluctant to permit a change in representation if you have reached the final phase of your divorce proceedings. The court is not likely to allow you to change attorneys if appears to the court that your only real desire to seek new counsel is to delay the case or to gain some type of strategic advantage.

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