If your family lawyer has not followed the action plan you need to determine why

In the best of cases, the relationship with your family lawyer will go well and you will not need to consider changing the scene. But it is the rule, not the exception, that things will not go smoothly in a contested divorce case. And you do need to keep evaluating how things are going.

If things are not going smoothly, however, it does not necessarily mean it is your lawyer’s fault. And even if it is, that doesn’t necessarily mean you should fire your lawyer.

How can you tell if it is time to switch lawyers?

When you’re in the thick of battle and everything seems to be going wrong—the Judicial officer is sniping at you, your money is running low, and you haven’t seen your children in a month.

How do you decide whether to stick with the lawyer you’ve got or find someone new?

When you feel the need to lash out, and your lawyer is the most convenient target, stop and ask yourself these five questions:

• Has my lawyer failed to follow the action plan?
• Has my lawyer lied to me, misused my funds, or falsely billed me?
• Has my lawyer failed to communicate with me?
• Has my lawyer been unprepared?

Has my lawyer given up any of my rights without my consent or otherwise acted contrary to my instructions?

If you cannot answer yes to any of these questions then, objectively speaking, your lawyer is probably doing an acceptable job. Instead of firing your lawyer, wait out the storm and see if things do not improve with time. As in any protracted contest be it an election or a board game, both sides in a divorce will have their ups and downs. Switching lawyers for no good reason will not help. It wastes valuable preparation time, and it is expensive.
 

Leading Questions

On the other hand, how do you know if you have a good reason to fire your lawyer? Let us consider each of the five questions.

Has my lawyer failed to follow the action plan?

If your lawyer has not followed the action plan you need to determine why. Sometimes things occur which are beyond the lawyer’s control and which make it impossible to follow the action plan. In such cases, the action plan needs to reviewed and amended accordingly.

If your lawyer has amended the plan, without unreasonable delay, then your lawyer is probably doing a good job.

If, on the other hand, nothing has occurred which would prevent the action plan being followed, or your lawyer has not acted promptly in reviewing and amending the action plan, then this is a sure sign that the lawyer is not doing a proper job. After all, the action plan is simply the lawyer’s own description of how they should handle your case. If your lawyer fails to follow this self-written job description, how much worse could things be?

As soon as you become aware that your lawyer has missed deadlines or items on the action plan, you must bring the breach to your lawyer’s attention. Do not second-guess yourself; you need not be concerned that you are over-reacting or misinterpreting the law. All you are doing is monitoring the action plan that the lawyer devised and pointing out that it is not being followed.

When you point out a breach in the action plan, your lawyer will respond in one of three ways:

• By correcting the problem and following the action plan thereafter
• By correcting the problem but still failing to follow the action plan after that
• By refusing to acknowledge that a problem exists and trying to make you feel in some way mistaken or at fault.

The response you want, of course, is the first one. If your lawyer corrects the problem and proceeds to follow the action plan, then you should feel comfortable continuing with that lawyer. All lawyers get off schedule now and then. As long as no harm has been done to your case (or any harm done has been rectified), then one slip-up should not be regarded as grounds to terminate the representation.

If you receive the second response and the lawyer continues to make promises that are not kept, then you will be caught in a grey area. You will have to weigh up the difficulty of overseeing and prodding your present lawyer against the inconvenience and expense (and uncertainty) of hiring a new one.

If you receive the third response—the lawyer refuses to acknowledge the problem or, worse yet, tries to make you feel that it is only a problem because you are making it one—beware. What you have, at its simplest level, is a lawyer who promised to do something and is now denying having made such a promise, a lawyer who may be trying to make you feel guilty for expecting him or her to live up to these promises. Such a lawyer is not trustworthy. The longer you stay with this lawyer, the more your problems will multiply.

Has my lawyer lied to me, misused my funds, or falsely billed me?

A lawyer has a professional and ethical obligation, imposed by the profession and by the licensing boards, to be honest with clients. Your lawyer does not have any choice about whether or not to tell you the truth. Being lied to about anything is reason enough to fire your lawyer.

Has your lawyer misused funds or falsely billed you? Lawyers get paid for their time. Your lawyer is the only one who really knows how that time is spent. The temptation to add an extra hour or so to the bill can be great. Perhaps the two-hour meeting with your lawyer shows up as three hours on the bill; ten-minute phone calls are billed as thirty-minute calls. You may have asked your lawyer to do something but a secretary does it and you are billed for the work at the lawyer’s hourly rate. The lawyer may have received a substantial retainer but cannot (or will not) account for where it went. You may have questions about your bill that your lawyer cannot (or will not) answer to your satisfaction. Alternatively, your lawyer may claim expenses for your case (experts, travel expenses, courier service, etc.) for which there is no documentation.

Each of these situations is a warning sign that something could be awry. Although it is possible that you just lost track of time and thought the meetings and phone calls were shorter than in fact they were, it is also possible that your lawyer is padding the bill. While it may be possible that the fees and expenses are correctly billed, and the lawyer is just too disorganised to itemise them correctly, it could also be that the time and expense charges are fabricated.

A lawyer’s client is absolutely entitled to a detailed accounting of all of the time and expense charges. If you suspect a problem, you should write your lawyer a letter and insist on an explanation. If you are not satisfied with the explanation, or if your lawyer ignores your letter, you should seriously consider finding another lawyer. 

Has the lawyer failed to communicate with me?

Lawyers and clients can have vastly different communication styles and this can lead to frustration on both sides. While a lawyer might feel as if they have been on the phone all day explaining things to the client, the client is feeling completely confused and up in the air. Who has to say whether the lawyer has failed to communicate or the client has failed to understand?

How does one judge whether the lawyer’s communication skills are inadequate or whether the subject matter being communicated is just not comprehensible to the client? How do you know whether switching lawyers would help matters or whether you just do not understand how the system works and never will?

A client needs to have information in written form so that it can be re-read later. Clients also need information in writing so that the course of the litigation can be documented in case any questions arise later about what was recommended, what was done, and why. If you have to switch lawyers, you will save a great deal of time and money if the new lawyer can read the old lawyer’s status reports to get up to speed.

Another communication problem can arise when the client cannot get the lawyer to listen. If your lawyer cannot return your phone call the same day or the following day, someone from the lawyer’s office should let you know when your call will be returned. It is unacceptable for a lawyer to be inaccessible by phone to clients. Unfortunately, many divorce clients simply cannot reach their lawyers on the phone when they need them.

Has my lawyer been unprepared?

Sometimes it will be obvious if a lawyer is unprepared. Look for any of the following indicators:

• The lawyer who comes to court and cannot remember what your case is about
• The lawyer who forgets to attend a meeting or court hearing
• The lawyer who does not file documents within the appropriate time deadlines
• The lawyer who does not devise a plan for your case and then follow through on it
• The lawyer who does not meet with you to get information about your case and then interview witnesses
• The lawyer who does not research the legal issues
• The lawyer who does not consider exploring settlement or alternative dispute mechanisms
• The lawyer who does not locate and hire the necessary and appropriate experts.

Any of these unprepared lawyers could be forfeiting some of your rights. Lawyers should not make strategic decisions without the client’s authorisation. They should not choose the slow, cheap route over the fast, expensive route, without first consulting you. Your lawyer should not unilaterally decide not to pursue certain rights or remedies you may be entitled to without first getting your permission.

Has my lawyer given up any of my rights without my consent or otherwise acted contrary to my instructions?

If your lawyer has given away any of your entitlements or done anything which does not conform to your instructions to him or her, this should be enough to cause you to change lawyers.
 

A Word of Caution

You should be very careful, however, not to blame your lawyer for your own failure to do your bit. Honestly, ask yourself

• Have I provided information when asked?
• Have I made decisions and given clear instructions when asked?
• Have I paid my lawyer’s bill or made alternative arrangements?

Once you are satisfied that you have met your end of the agreement, if your lawyer has not met his or hers, then you need to seriously consider changing lawyers.