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Can I Change My Divorce Attorney?

What to Do If Your Divorce Lawyer Isn’t Fighting For You

Video Transcript:

Too often—I'm sorry to say too often—there are lawyers who don't do right by their clients.

Rob Rosenthal:

Do you know what to do if you feel like your divorce lawyer isn't fighting for you? Well, that's what we're going to find out, because that's what we're going to ask the lawyer today.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com, and my guest is New York attorney Chaim Steinberger. Hi, Chaim, good to see you again. Thank you for making some time for us today.

Chaim Steinberger:

It’s always my pleasure to be with you, Rob.

Rob Rosenthal:

So, we get form submission on our site where people say something to the effect of, “My divorce lawyer is not fighting for me.” Is that something you hear when you do consultations in your experience?

Chaim Steinberger:

That's very frequent. There's so many people who feel that way, and it's a complicated issue in fact. It's a very difficult issue to tease out and understand what's going on.

Rob Rosenthal:

Well, let's try to do that. What do you think people mean when they say, “My lawyer's not fighting for me.”

Chaim Steinberger:

So the first question is, are they right? Is the lawyer not fighting for them? And there could be a whole host of reasons why lawyers actually don't fight and don't do the right job for clients. So, I'll start with this; I have this long spiel that we probably don't have time for today, but probably maybe 5% to 10% in any profession, 5% or 10% of all doctors—when I ask heart surgeons and brain surgeons what percentage of their colleagues they would entrust their mother to—they tell me maybe 2% or 3%. So, there are a lot of people who just don't know what to do; they know they can fake it. They can go through the day-to-day steps, but they really don't have the savvy for taking a case, of being able to take a case to trial. So sometimes the lawyer just doesn't have the smarts, doesn’t have the knowledge, doesn't know the technical legal law, doesn't know the procedure.

Maybe the lawyer knows the day-to-day stuff, but doesn’t know how to be a trial lawyer. Maybe a lawyer is afraid of turning the judge off. I've had lawyers tell me no one case is more important than my livelihood; I know I have to come back into court every single day for a bunch of different clients, and I am not going to sacrifice my relationship with the judge for one particular client. So if the lawyer thinks that the judge feels a certain way, the lawyer may be hesitant to push back, the lawyer may not know how to push back and be able to fight back for the client. Sometimes the lawyer is just not committed enough; the lawyer doesn't want to do the hard work, the lawyer just sort of pushes the case along and does the bare minimum on the case and tries to get as much money as they can. Look, we're all overworked. We all have bills. We all have expenses. And so the lawyer may just do the bare minimum in every case to keep it moving and try to generate enough income. So I'm sorry to say too often, there are lawyers who fail to do right by their clients.

Rob Rosenthal:

Could it be that sometimes a client has a misperception of what fighting for them could be? Maybe if they're not fighting over every little thing, they feel like they're not fighting for them.

Chaim Steinberger:

So that's certainly true also. I'm a very mechanical guy; I got my pilot’s license in 1995; I rebuilt the carburetor on my mother’s ‘67 Ford Fairlane. I recently took my Saab stick shift convertible into the mechanic, and I pointed out a problem and the mechanic says, “Oh well, it's the blah, blah, blah...” and I realized then that I have no idea if this mechanic knows what he's talking about, or if he's just blowing smoke up my coat tails. And so it's really difficult for non-lawyers to be able to gauge the type of work and the quality of work that lawyers do.

I always get a kick out of this when people are sitting in my conference room at the first initial strategy session meeting, and they either open a paper or they open the proverbial paper, and they look at me and they go, “Are you involved in bar associations?” And I sort of laugh inwardly because I'm very involved with lots of bar associations, as you may know, but there are people who are involved in bar associations who don't really know what they're doing, and then there are some of us who are involved in bar associations who are top of the class. So I can answer the client's question, but the client doesn't have the background knowledge to be able to evaluate what I'm saying, and be able to gauge whether it's real real or whether it's just a title, just a lawyer who's obstreperous, who makes a commotion on everything.

I've been in chambers with judges because very frequently, especially for matrimonial cases, judges will often invite the lawyers back without the clients. I hate that. I always want the clients to be in the room so that they hear what's going on if possible. Judges often bring the lawyers into the back room without the clients, and I'll ask if my clients can come, but no, no, just the lawyers. And I've made an argument to the judge and the judge will look at me and go, “Chaim, counselor, you don't have to be so dramatic. The clients aren’t here.” And I'm like, “Your Honor, you don't understand. I never posture for my clients. When I make an argument it’s because I believe in that argument, and I believe in my client's case, and I believe that justice requires my client to win.” But there are many lawyers who will just posture, who will just make arguments. The trick is knowing when to make an argument and when not.

Of course, there are some clients in some cases that can't be won as their position. If I have a raging drunk, alcoholic father who comes in to me and says I want custody of my son, that's going to be a tough case. Maybe I have to adjust the client's expectations; maybe I send the client over to Alcoholics Anonymous and have him deal with his rage, and then turn him into this new person so that I can come into court and say, “Your Honor, that was old father. New father is a good guy. The child needs him.” I was going to say he deserves custody, but custody is never about what a parent deserves. Custody is about what's best for the child. And so I might say, “Your Honor, new father is really critical to the child's development. And this child will be better off with the father.” But you need to rehabilitate your client. So sometimes you really can't fight for the client the way it's set out in the beginning. Sometimes you have to find an angle, so the lawyer needs creativity.

I think, Rob, that you and I have spoken about this. What makes a superior lawyer? I’ve written about this; I have this on my website. How do you recognize a superior lawyer? Just being contumacious, just being obstreperous, just fighting or being a loud mouth, just telling the client, “Yes, yes. I'll do whatever you want. I'll get it.” That's not necessarily right. Being methodical, finding a basis for why the client should win, being able to draw on different areas of the law to find the hook and to convince the judge of why what you want the judge to do is in fact justice, and then finding the law that allows the judge to do what the judge will believe justice to be; that takes skilled determination, hard work. So you've got to judge what the lawyer is doing for you, but you can't be superficial about it. You need to use a critical eye. You need to see, does this lawyer believe in my case? Is the lawyer laying out the law? Are they explaining it to me, what their basis is and why they agree with me or why they don't agree with me.

One of my mentors who wrote one of the best books I’ve ever found on trial practice, talks about what are the most important qualities for the advocate to have. One of the examples he uses is about a dentist who gave clients a placebo as a painkiller, and whether it worked or not. And it turns out that the determinative factor on whether the placebo would reduce the patient's pain is whether the dentist believed that it would reduce the pain. So the dentist knew that it was a placebo, and I don't quite understand how they did this, maybe it was earlier times because that seems to me that that would be unethical for a doctor to prescribe something that he knew didn't work, but if the dentist believed that it was a placebo and it wouldn't work, then it didn't work. If the dentist believed that the placebo was actually a pain killer, somehow the patient picked up on it, and it in fact did reduce the patient's pain.

The same thing is true with lawyers. You need a lawyer who believes in the justness of your case, and if your lawyer doesn't believe in the justness of your case, if your lawyer is not committed to your case, if a lawyer isn’t willing to turn over every rock and do the hard work that it takes to build a winning case, then in fact, it may be that the lawyer’s not right for you.

So listen carefully. If you're asking for something that's un-doable, if you're asking for the impossible, sometimes you need to figure it out; you either have to develop a different case, find a new angle on the case, or you may have to adjust things so that your ask becomes within the realm of reason.

Rob Rosenthal:

So let's take it to the next step then. Obviously, clients have the right to choose their own attorney. Let's say they just decided this is not a match, and my divorce lawyer is just not going to work out. What's the process then, if they decide they no longer want to be with that attorney, they want to go with someone else? What's that process?

Chaim Steinberger:

A client has a constitutional right to discharge a lawyer at any time. So the client can discharge the lawyer, hire a new lawyer. Generally, here in New York state, we file a consent to change attorneys. The old lawyer signs that, the client signs it, the new lawyer signs it, and ones that served on opposing counsel in the court, the lawyers are changed. That's a simple procedure. If you owe your old lawyer money, then the lawyer has what is called a retaining lien, and could hold onto the documents, and sometimes that can hamper the new lawyer coming in because he may not have the entire file, he may not have the documents. But if the old lawyer is paid up, the old lawyer should return any unused retainer funds and the lawyer should turn over the file to the new lawyer, and with the filing of the simple paper, that's enough. However, there is a loss of certain institutional knowledge; bringing the new lawyer up to speed, that could take a bit of time.

Rob Rosenthal:

Lots of helpful information as usual, Chaim. Thank you so much for taking some time to answer our questions.

Chaim Steinberger:

It's my pleasure.

Rob Rosenthal:

That's going to do it for this episode of Ask of the Lawyer. My guest has been New York attorney Chaim Steinberger. Remember, if you want the best information or you want to make sure you can choose a lawyer that lawyers choose, go to askthelawyers.com. Thanks for watching. I'm Rob Rosenthal with AskTheLawyers™.

Disclaimer: This video is for informational purposes only. In some states, this video may be deemed Attorney Advertising. The choice of lawyer is an important decision that should not be based solely on advertisements.

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