Advice on finding new attorney in middle of court case

[newyorker]

I am in the middle of a primary residence case and I am very unhappy with my attorney. I would like to find a new attorney, but I am unclear as to how to fire one and hire another. How do I deal with this issue before my next court date in less than two weeks?

Will the current attorney give the new one my file with all the information on the case so far? Will hiring a new attorney in the middle of the case damage my chances of winning?

Thanks in advance for any information!

[TenantNet]

From a purely mechanical point of view, you would need to hire the new attorney, who would then "substitute in" with a Notice of Appearance to the Court and opposing council. The old attorney will probably want you to sign a form releasing him of obligations to you. There are rules -- which I am not familiar with -- both Court rules and I think also Bar Association rules on issues like this.

The new attorney would probably ask the court to postpone the next date indicating he just got the case, needs to review the file, etc. How much time he seeks or which the court would grant probably depends on many factors.

I do not think the old attorney can withhold giving your file to the new attorney, even if issues of fees come up.

Before you fire your old attorney, make absolutely sure that is what you want to do. An attorney's job is to win the case, advocate for his client. There may be times he may push an issue that on the surface is not pleasing to you, but in the end might be to your advantage. Some attorneys are not the best communicators. If that's the case, then tell him you need to understand what is happening.

All attorneys are supposed to give clients a statement of client's rights. Here's an example of one:
http://www.tenant.net/Court/Legsystm/att03.html

Also make sure the new attorney is OK with what it is you want to do.

[queensborough]

Before you give up 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. You said you have only 2 weeks, so you may not have time to do this and wait around to hear from the lawyer. 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.

When it is necessary it's pretty easy to dump you lawyer. You can just say: "you're fired". However, if your lawyer has come to court on your behalf and made a general appearance (gone on record as your lawyer), then he/she has to get the judge's permission to withdraw from your case. 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 change lawyers it will almost always delay your case. The new lawyer will want to ask the judge for 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 money back. Most fee agreements state the fee is non-refundable. This could be costly for you.

If you fire your lawyer, he's required to give a copy of the file that was created for you case to the new lawyer. It's illegal for an attorney to hold the file hostage, even if you owe money. This information came from www.lawcollective.org/article (Just Cause Law Collective).

[TenantNet]

Another point ... we always recommend tenants get a Tenant Attorney. They specialize in tenant issues and know the landscape. There are many competent attorneys who know very little about the LL/T system here in NYC. They usually specialize in some other area, or in many cases are general attorneys that do many things OK, but nothing in particular supurbly.

For the most part Tenant attorneys represent tenants exclusively, but there are a few exceptions that work both sides. Most of the attorneys that advertise on TenantNet represent tenants exclusively. There are also others that do not advertise here, which of course is no comment on their competence.

Even the best attorney occasionally will lose a case. You don't want one that will tell you what you want to hear. You want one that will do everything they can to win the case ... and will tell you when your case is weak (or what part is weak), will suggest alternate strategies, and who will tell you when you're full of sh*t.

Also consider that attorneys in private practice might be carrying up to 50 cases simultaneously. While he/she has an obligation to you, he/she also has obligations to the other clients. So you can't monopolize their time. OTOH, if they miss deadline, don't call you back in a reasonable time (or without an explanation), then you have a right to ask what's going on. They are there to win you case. Find some one else to do the hand-holding (not suggesting that's the issue here, but I've seen it many times.)

[Aubergine]

If you fire a privately retained lawyer, you don't necessarily get any money back. Most fee agreements state the fee is non-refundable. This could be costly for you.

Lawyers are not permitted to retain fees that they have not earned, and can be subject to disciplinary sanctions if they do not refund unearned fees. It does not matter if the retainer agreement states that it is non-refundable. Disciplinary Rule 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3]) provides, "A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned." This applies to a lawyer whose withdrawal results from discharge by the client.

[NYHawk]

the procedure for substituting one lawyer for another, is the filing with the court and service upon all parties of a Notice of Substitution signed by the client, the attorney of record and the new attorney.

The attorney of record can properly refuse to surrender all client papers if there is any fee dispute. Such a right is called a "retaining lien."