by Ed Sherman
Founder of Nolo Press and the Self-Help Law Movement
(adapted from Make Any Divorce Better)
You have a right to discharge your attorney at any time for any reason or no reason at all. You can do this even if you owe your attorney money and even if you do, your attorney cannot hold your files but must hand them over immediately to you or to your new attorney.
If your lawyer is not performing to your satisfaction, you may want to send a letter (keep copies) setting out very specifically what needs to be changed. If there is no improvement, start shopping for another lawyer.
Some things can’t be changed: for example, if you lose trust and confidence in your lawyer, get another one or take over the case yourself. Nothing is worse than feeling trapped in a bad relationship with your own attorney. If your spouse has an attorney, it would be unwise to fire your old attorney until you have another.
New attorney? If you hire a new attorney, your new attorney will file required forms and arrange to get your files from your old attorney. However, if your spouse has no attorney, you can consider taking over the case yourself.
Taking the case yourself. If you discharge your attorney to take over yourself, do it in writing and keep a copy of the letter. If the attorney has filed documents in court, you must also file a Discharge of Attorney naming yourself as the new attorney “In Pro Per” or “Pro Se,” which means that you represent yourself.
We have a Discharge of Attorney form that should work in most states. For the form that is specifically for California, click here.
Fill out the form, print it, sign it, and make three copies. Have someone (not you) mail a copy to your ex-attorney, your spouse and your spouse’s attorney, if any. That person signs the Proof of Service then you file it with the court clerk. Send a letter to your ex-attorney politely explaining that you have taken over your own case and request that all files and papers be immediately forwarded to you.
Your former attorney’s duties. An attorney cannot ethically delay turning over files and documents merely to pressure you into payment of amounts owed. Failure to promptly forward files as you request is a breach of the attorney’s ethical duty to you. In case of unreasonable delay, fire off a letter of complaint to the local and State Bar associations with copies to your old attorney. Meanwhile, you can always get copies of court documents from the court clerk.
Copyright 2012 Ed Sherman
This information comes from Ed Sherman’s award-winning book, Make Any Divorce Better.
Ed Sherman is a family law attorney, divorce expert, and founder of Nolo Press. He started the self-help law movement in 1971 when he published the first edition of How to Do Your Own Divorce, and founded the paralegal industry in 1973.
With more than a million books sold, Ed has saved the public billions of dollars in legal fees while making divorce go more smoothly and easily for millions of readers. You can order his books from www.nolotech.com or by calling (800) 464-5502.