Q & A: Firing an Attorney

Q:

I want to change the child custody order from my previous divorce but I don’t want to use the same lawyer who handled my divorce, do I need to fire him before I hire you guys?

A:

In regards to firing your current attorney, my first question would be whether you actually are currently represented by an attorney.

If your divorce is final then the original scope of your agreement with your current attorney would most likely already have ended. Attorneys are generally retained for specific matters only. This means that your attorney would have been retained to represent you only in your original divorce matter. Once the divorce was final then you would no longer be represented by him, and there would be no need to “fire” him. You would be free to hire a new attorney for any new matter that comes up. A change of the parenting plan to give you more custody would be a new matter.

If you have not had him begin work on this new matter then you do not need to “fire” him. You can simply call any attorney and begin a new relationship with them.

Of course, if your old attorney has already begun to work on this new matter then you would need to let him or her know that you are going to seek new representation and will no longer need their services. I suggest that you both call their office and mail them a letter informing them of this decision and asking them to release all your files to you. But it is very important that you send them a letter.

In this situation they would be entitled to any fees for work they have completed up until that point. This would possibly include any non-refundable retainer if this was paid by you.

Unfortunately custody modifications can be one of the most expensive types of family law issues. (In reality the most expensive part of the original divorce is usually the determination of child custody.) Unless both parents are in agreement to the modification, these types of issues almost always result in a trial in front of a judge. The court will also need for there to be some type of reason to grant the custody modification, if contested.

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