There are lots of reasons why you might consider changing your family lawyer. Here are some of those reasons and some tips about what to look for if you think you aren’t confident you are receiving the right legal advice for your situation, and what to do if you have decided to change lawyers. Let’s dive in.
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It’s your right to be represented by the family lawyer of your choice, whether you are just starting out with a family law matter, or your case is already in the court system or you have been negotiating for some months.
You only get one chance to do your property settlement – once final orders are in place, it’s very difficult if not impossible to get them changed (there needs to be fraud or some other conduct which leads to final orders being set aside). So it’s crucial that you receive the best possible legal representation throughout all stages of your matter. But what happens when you have already hired a family lawyer and are now having second thoughts about them? Is it possible to change your family lawyer?
The short answer is yes.
Changing your family lawyer isn’t an easy decision as you’ve already invested time and money with your current lawyer. And while it’s not common during a divorce and/or property settlement, sometimes a lawyer replacement is vital to getting your case moving the way you want it to. It’s not uncommon to occasionally feel irritation or frustration when your matter isn’t progressing as you’d hoped. You should always talk to your lawyer when you feel this way, to make sure you know where everything is up to and what to expect next. Feeling annoyed, angry, worried, confused or scared during your family law matter is totally normal. If you’re unsure what your lawyer is doing, agree on deadlines, and make sure you get regular updates on your costs and whether these are in line with what is set out in your costs agreement. If all that fails and you’re not getting what you want there are definitely certain situations when you should be considering a change of lawyer.
Why change your family lawyer?
Here are some of the situations that might ring alarm bells and when you might reconsider your choice of family lawyer.
- Strategy concerns
Does your case have a well-thought out strategy specific to your needs? If you currently have a lawyer and you don’t know their recommended strategy, you should be concerned. Being successful and efficient in family law matters relies upon agreeing to a clear strategy that addresses your issues, interests and needs. It isn’t always necessary to chase every rabbit down every rabbit hole. Are you getting lost in the weeds and have no idea where the case is going?
- It’s taking too long (and it’s not just slow court processes).
Sometimes, it’s hard to know whether the problem is actually with your family lawyer or outside of their control. For example, your lawyer cannot do much about the chronic delays in the court system. Or, there may be uncooperative third parties or your spouse or their lawyer is being slow. But when negotiations have been stalling for a long time and you don’t feel you are moving towards a resolution, yet the costs have kept building up, this could certainly be a cause for concern.
- You don’t feel heard.
You don’t feel your opinion matters to your lawyer or that they are truly invested in helping you. They might not return calls or communicate properly with you, and fail to keep you up to date. They might speak in jargon and fail to adequately explain themselves, or make everything more complicated than you think it should be. You might feel they are only interested in what they can bill you, and you’re terrified to even call them due to potential costs.
- You don’t like them or get on with them.
Family law matters can go on for a long time and whilst you are unlikely to ever become best friends, you have to be able to get on with your lawyer, trust them and feel you can tell them things relevant to your case. Or there may simply be constant, fundamental disagreements between you and your lawyer that are causing you to lose confidence in how everything is being handled.
- You’re concerned about their conduct.
Sometimes you might be unhappy with how your family lawyer is handling your case. Perhaps they aren’t adequately prepared for court. Do you feel that your story needs to be told over and over again? Perhaps they seem disorganised, asking you to provide documents you have already provided, or fill in forms you’ve already completed. Or they continually fail to provide you with draft documents when promised. Maybe they keep asking for adjournments from the court without a good explanation, potentially harming your case. Perhaps you’ve even received notices from the court or the other party stating that deadlines have been missed or your case is in danger of being dismissed due to inactivity. These are definite reasons to take stock.
- Concerns over experience.
Sometimes, you might find the lawyer you’ve engaged doesn’t have the necessary experience in matters relevant to your case. Maybe you’ve engaged your local town lawyer who is a generalist without the specialist knowledge and skills. Maybe you’re concerned the lawyer doesn’t seem to understand the delicate issues common in family law cases. Or you’ve chosen a big, law firm, keep getting different junior lawyers, feel you’re not getting personalised advice, and that you’re just a number in their system.
What to do if you have decided to change lawyers
- Try to resolve the issues.
The first thing to do is see if you can resolve the problem with your existing lawyers to get back on track with them. Sometimes misunderstandings can be sorted out. It’s a good idea to at least advise your existing lawyer of your concerns to see if they are prepared to fix the problem. Identify what the problem is and communicate this to your lawyers, asking them to respond in writing. Consider their response and whether it addresses your concerns. For example, the lawyers may give a better explanation of the laws, the evidence, or other aspects of the case that are contributing to the problem. They may suggest how things can be done differently to allay your concerns.
- Get a second opinion.
If you are still dissatisfied, the next step is seek out a second opinion from another law firm. This means having an objective set of eyes evaluate your case. If you approached us for example, we don’t automatically suggest you change lawyers unless we feel it’s actually in your interests to do so. Sometimes we have had prospective clients come to us asking for a second opinion and we were able to confidently assure them that their existing lawyers were doing a great job. If a second opinion indicates however that in the eyes of the new lawyer you have received poor advice, and different advice is given, ask for a thorough explanation of the reasons behind the different advice. Family law advice should be based on both written law (such as the Family Law Act), and case law, and you are entitled to know the basis of the fresh legal advice. But please, make sure you don’t simply accept new advice because it sounds better than the previous advice. For example, some law firms can be quite aggressive and prefer to pursue Court action. In some cases this may be appropriate, but it is likely to be more expensive with much higher fees than a negotiated settlement. Ask yourself: If I were to follow the new strategy, would I be any better off having regard to delays and higher fees for taking the matter all the way to court?
- Making the switch.
The actual process of changing your family lawyer is simpler than you may think. If you’ve signed a costs agreement, there is typically a clause explaining how you terminate your agreement so ensure you read this carefully.
Once you hire a new lawyer, your case file will be transferred to them. This is because your file belongs to you, not your lawyers. (Note, your invoices with your previous lawyer will need to be paid before they will release your file to you.) Make sure you give your new lawyer a full and accurate account of events in your case so far, because if you provide incomplete or inaccurate information will prevent your new lawyer from giving you the correct advice.
You may be concerned about upsetting your previous lawyer. Don’t worry, your new family lawyer can advise your previous lawyer on your behalf if you prefer. And never fear, lawyers generally do not take this personally!
Finally, if your case is in the court system, you’ll need to file a new Notice of Address for Service with the court telling them about the change of lawyer. You also need to ensure the other party gets a copy informing them that you have appointed another lawyer. The new lawyers will take care of that. If your matter is in court in the very near future, your new lawyers may ask the court for time to get up to speed. If the reasons are appropriate, the court will often consider granting such a request.
Is there any stigma associated with changing your family lawyer?
Although it is your right to have the legal representation of your choice, repeatedly changing your family lawyer could leave a negative impression with your new lawyers if you are shown to be continually passing through different lawyers. They might regard this as “lawyer shopping” and be quite cautious in their dealings with you.
Some sensitive periods do exist if your case is in the court system, such as mere weeks before a final hearing. In that case, you should ensure you have a really good reason why you wish to change lawyers and why an application to defer a final hearing is essential to the fair running of the case. Such adjournments may be granted by a judge but they are rare, can involve costs orders against you, and there is no guarantee your new lawyers will be given that extra time. Sometimes you will change lawyers, but not necessarily barristers. After all, it is good to keep one of your representatives involved – it makes for a smoother transition.
Changing lawyers too often can make it difficult to find new lawyers to take on the case, who might regard you as a potential “difficult client” or someone with unreasonable expectations.
This is especially important if you have a case already in the court system. If hearings are imminent, a new lawyer might not have time to adequately prepare for your case. Therefore if you have decided on changing your family lawyer, don’t delay any decision as this will usually only make things harder.
What to look for if you think you aren’t getting the best advice.
- The right relationship.
An effective client-solicitor relationship only happens when there is a relationship of trust and open communication. You are a team and need to be on the same page. Therefore it’s critical that you engage a lawyer you find empathetic and who makes you feel comfortable, well informed, and understood. Bear in mind, the lawyer is an expert, and is being paid to advise you. You may not like the advice, but that doesn’t prevent the advice being sound.
- The right kind of specialisation.
It’s best to choose a specialist family lawyer who is well versed in the legislation (which is ever-changing) as well as the particular areas specific to your needs. Consider for family law using an accredited specialist.
- The right mindset.
You need a family lawyer who ensures all process options are available to you. Different models and methods of resolution exist, for example mediation, collaboration, arbitration, traditional negotiation, mediation and litigation. Ideally your family lawyer will attempt to resolve your dispute out of Court to avoid the costs and time involved in litigation. Make sure you choose a family lawyer who is willing and able to engage in the full spectrum of dispute resolution methods to find the right outcome for you. Think very carefully about engaging lawyers who want to be confrontational, or only want to battle it out in court.
- The right price.
Fees are an important factor in your decision-making process. But it isn’t strictly about hourly rates. Your focus really needs to be on value. Sometimes, a lawyer with a higher hourly rate can save you money in the long run, as their greater experience or their firm’s efficiency enables the most cost-effective resolution to your matter. Do they use the latest artificial intelligence or other software to prepare documents and collate evidence at a fraction of the cost of the ‘old style’ paper handling? On the other hand, you also want to ensure your lawyers are determined to help you keep your legal costs down (here are some ways we do this at Alliance Family Law).
Although it can be a difficult decision to make, changing lawyers is sometimes the best way forward. Having the right lawyer can make all the difference in the outcome of your case, so it’s well worth ensuring you are truly comfortable with your choice of lawyers.
At Alliance Family Law, we resolve most of our matters through negotiation, mediation and collaboration, aiming to keep our clients out of court wherever possible, however we are also very experienced with the Family Court system. If you need assistance with a family law matter or require a second opinion, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law.
You might also like to read our blog on how to choose your ACT family lawyer.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.