Thinking about hiring another law firm to handle your divorce or custody case? It is not uncommon for litigants to switch attorneys in the middle of their case. We estimate that almost half of our new clients hire us as a replacement for a prior attorney. In this episode of our family law and divorce podcast, Jake Gilbreath and Brian Walters discuss how to determine whether you should switch attorneys and what that process looks like.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters: All right. Well, welcome back to For Better, Worse, or Divorce. I’m Brian Walters here with Jake Gilbreath. And today’s topic is, we’re going to talk about something that comes up a lot, is that somebody’s not happy with their attorney and they’re in the middle of the case, and they kind of face a difficult decision of, “Do I switch to a better attorney, or do I stick it out with the one that I have?” That’s not an easy choice. It’s got its pluses and minuses and risk and benefits. We deal with that a lot. Probably, I don’t know, 30 or 40% of the consults that I take are that exact issue, and probably 30 to 40% of our caseload is we’re the second lawyer, sometimes even the third lawyer. So these are all things that… It comes up. It’s a natural source of concern.
Brian Walters: I look at it a couple different ways. Usually, what I talk about with people, the first question is, “Is it really your lawyer? Or is it just you’re in a crappy situation? Or maybe this is to be what’s expected, and they haven’t set your expectations correctly. Or are they just not that good at what they do?” That’s probably the first question. If the answer is, “Yeah, it’s really the lawyer,” which, frankly, it is most of the time in my experience, then the question is, “Well, is it worth changing?” Because things may be cooked in so far that it doesn’t matter. Sometimes people call us after they’ve signed a binding final MSA, and there’s only so much we can do. Other times, there’s a lot that we can do or some other law firm can do.
Brian Walters: And then the third part of it is usually, “Well, what’s the procedure?” Let’s say that they do want to hire us. “How do we hire you? How do we switch lawyers? What happens with the file? With my money that I paid that lawyer?” So you want to talk about that the first component of that is, it sounds a little bit like a relationship, is it me or is it you? So how would you determine that if you’re a client thinking about, “Hey, I’m not happy with the way this case is going,” how would you think they should look at that and try to make a determination?
Jake Gilbreath: Yeah, I sound like a broken record on this podcast and with our associates, but most of the time, I would say 90% of the time it’s an issue of communication with the lawyer that you have. That’s the biggest complaint I get when people… And obviously we get people that come in, and this happens a lot too, where it’s like, “Look, we went to court and my poor lawyer, I like him or her quite a bit, but wow, they really didn’t know what they were doing or they gave me some bad advice or they’ve been telling me this.” And I… “Wait, they told you what? That’s not right, it’s this over here.”
Jake Gilbreath: And you do have those obviously where you get that sense that you’re getting the bad advice, which is hard. That’s hard to figure out as a client, “Am I being told good advice? Am I not? That didn’t seem to go well in court. Is that normal?” That’s a hard one to figure out. And that usually takes some shopping around and some research and talking to board certified lawyers. You may be a lawyer that’s not board certified, you may not be as experienced in family law so you want to consult with me or Brian because we’re board certified or another board certified lawyer just to get a more qualified opinion, is what you’re thinking. So figuring out is this just this lawyer may not have the skill set needed for the level of my case?
Jake Gilbreath: That’s a hard one to figure out, but clients can figure out that out, and they do. A lot of times they figure out after court or after a deposition when their lawyer can’t figure out how to ask a question or what have you. But again, most of the time people are coming in with me and going, “I love my lawyer or maybe I don’t love my lawyer, but good or bad, they won’t return my call or they won’t meet with me or I don’t know what’s going on. My divorce has been pending for two years and I don’t even know, there’s no end in sight.” “Well, what’s your lawyer say?” “I don’t know, I can’t get him on the phone, she won’t meet with me.” “Maybe she’ll meet with me but then they’re gone all the time,” or what have you. That’s most the time of what we hear people switching.
Jake Gilbreath: I was about to say it’s not normal. It is not acceptable if your lawyer’s not communicating with you. If you have that sense that you’re not being told what’s going on or that there’s a lag in communication. That may be normal, actually probably is normal, but it’s not acceptable. And that’s when people really get the sense of it’s time to switch. And that’s something that we preach in the consult, on this podcast, on our website, internally with our marketing team, internally with our associates, it’s just communication. This is a stressful, difficult process but if you’re not being communicated with… I did a consult yesterday, called 10 law firms, called 10 law firms trying to hire a law firm and couldn’t get a call back from any of them. Which is shocking, but again, not abnormal.
Jake Gilbreath: And then Brian, you and I did a case last month actually, and I guess this goes into the discussion of what’s the procedure transferring the file, can it be done? How smoothly can y’all do it? We got hired on that case in the Dallas area where I think the divorce had been pending for two and a half years. And the client did the consult with you and, “Nobody will give me any end in sight. Nobody will tell me what’s going on. I have no idea when I’m going to get divorced, what’s going to happen, what my case looks like.” And they were set for trial. Now her lawyer’s trying to move the trial, despite the fact that she desperately wanted to get divorced. They were set for trial, I think it was three weeks after she hired us. Case had been pending for two and a half years, hired us three weeks out from trial.
Jake Gilbreath: And then her lawyers tried to move the trial even though she didn’t want it moved, hired us, resolved the whole thing within three weeks, which included getting ready for a contested multi-day trial that we didn’t want to get moved. And then we went in, got it prepped and all ready to go and then the case resolved. I guess sort of talk about the logistics of that. That case, for example, had been pending for two and a half years with one lawyer, and then all of a sudden we’re taking over two, three weeks out from final trial in this situation. Kind of perceive, one, can it be done? The short answer’s yes. But talk to me about that. And then what’s that procedure look like, making that move from one law firm to the other?
Brian Walters: And just to follow up on that, I got a young daughter and I feel like when she starts dating someday my wife and I are going to have to have a talk with her about what to expect in a relationship. It’s sort of the same thing here. And I think that if you write your attorney an email and ask him a question, you should get an answer, in my view, within one or two business hours, but certainly within 24 hours. I think if you make a call, same thing, you should get a return call within 24 hours. To me, that’s really slow. I have zero unanswered emails in my inbox and it’s almost always that way. I was on a four hour flight earlier this week, we had no wifi, and when I landed there was 73 emails in lane box. But I got them all taken care of before I went to bed. That’s just the way you and I operate and that’s the way we demand our firm operates. But what I typically hear is, “I get three weeks between emails or my calls take 10 days to get responded to.” That’s totally unacceptable.
Brian Walters: Another thing that’s an indicator of a problem in the firm that they’re not functioning properly is if you’re not getting regular bills that are precise, preferably twice a month, but at least monthly. Those things almost always go hand in hand. They don’t return my phone calls or emails and I also don’t know where the heck I am on my billing or invoicing. Which is just an indication of an overall lack of functioning in that law firm, which is going to impact your case.
Brian Walters: So the second question I think about is, where in the process can a new law firm help versus not? And then we’ll talk lastly about the procedure of that. I think generally, the short answer is, the earlier in your case, the more a new lawyer can make a difference. And this has happened, we’ve been hired a week into a case where people have already figured out this is not going well. But if it’s going to last a year and we’re hired in the first month or second month, obviously we’re going to be able to make a difference. The example I gave earlier where the case has already been resolved, you’ve had a trial or you’ve had a settlement agreement that’s binding and irrevocable, there’s not that much a lawyer can do for you at that point. Now, there might be an appeal or there might be the way an order’s drafted from an MSA, in theory there could be some changes. But I would say, again back to relationship, if you have bad feelings about it, your gut instinct is probably correct that there’s a problem and you’re probably better off acting on it, because at some point it will be too late and then you just can’t do anything about it.
Brian Walters: So the mechanics of switching lawyers, we deal with this all the time. I have this conversation three or four times a week. There’s really two steps, one for the client and one for the attorneys. One, the client just needs to make that decision, “Hey, okay, I’m done with my former lawyer, I want to hire y’all,” and just make that. And once you make that decision, that’s really all you need to do, period, that’s it. Because at that point, we’ll send you a contract to electronically sign, it takes a minute, pay the retainer, it takes a minute. And then everything’s on us from there. We file documents with the court that goes to your outgoing lawyer and the opposing counsel that says we’re the new lawyers. You don’t have to have contact with them if you don’t want to. That can be awkward, sort of breaking up. And some people like to do that. They like to call their outgoing attorney and say, “Hey, didn’t work out,” say some nice things and be done. But 95% of them, they just ask us to do it.
Brian Walters : And the other lawyer, there’s nothing they can do. The outgoing lawyer, they will be removed from the case. They will have to give the file to our firm and you’ll never hear from them again probably, unless you have either an outstanding balance with them financially or if they owe you money as part of a refund. But again, they’re usually very disorganized with their finances and so that can often be some bit of a problem to figure out as you go forward. So that’s the basic structure of it. There can be specific changes. Sometimes we’ve been brought in to assist or supplement the representation and essentially co-counsel rather than just taking over the case entirely. That’s a little variation on it. That’s pretty rare but it does occur. What’s your experience been with those issues?
Jake Gilbreath: Well, it’s a spectrum, like all things. And I do have people coming and it’s not a good relationship. It’s just like a divorce comes in. Sometimes they’re just toxic relationship with their lawyer, the client and the lawyer are not getting along for whatever reason, for whoever’s fault. It’s usually the lawyer’s fault because customer’s always right, but toxic relationship, they’re not getting along, they’re wanting to fire their lawyer. It’s the same procedure, we file the notice of appearance, motion to substitute, “Hey, we’re going to take over, let’s get the file transferred,” and then it happens. That’s one extreme.
Jake Gilbreath: A lot of times people come in and they love their lawyer, they love him or her personally, they’re great, they just need a more specialized approach or a better approach or a firm with more structure like we have. Maybe the lawyers just overwhelmed or not up to the task. It’s no different than if my child had something more complex to deal with medically and been going to see his pediatrician, but maybe it’s time to go see a specialist, that doesn’t necessarily mean I hate his pediatrician. That just means it’s time to go to a different level and a different approach. And I tell the clients a lot of times, sometimes they’re really stressed, they’re like, “Well, somebody’s going to be upset with me that I’m switching lawyers.” It’s lie, “Nah, this is part of our practice.” It is not surprising to most lawyers, it’s not surprising if you have a solo practitioner or a smaller firm and say, “Look, I’m just going to switch to a different approach, somebody that can handle this maybe a little bit better.” Nine times out of 10 the lawyer’s not going to be surprised.
Jake Gilbreath: And it’s going to be a smooth transition. A lot of times we’re taking over for a friend of ours. I know lots of lawyers in the community. I’ll call them up and just say, “Hey, miss so and so decided to retain me, thinks you did a great job, but we’re going to take a little different approach or we’re going to take it from here.” And it’s just a perfectly normal sort of smooth transition and everything’s fine. So it’s a spectrum. And like you say, sometimes we’re brought in as co-counsel. Sometimes somebody comes in and says, “I just don’t think my lawyer’s up to the task of trying this case or handling this deposition or mediation.” And we look at it and go, “Your lawyer’s really given it his or her all, let’s keep your lawyer involved and co-counsel.” And then yeah, a lot of times we’re just taking over completely, but it’s not necessarily a contentious process or an awkward process.
Jake Gilbreath: But regardless of where it falls in the spectrum, we handle all of it. You don’t have to call and give them a Dear John letter or anything like that. You just motion to substitute, it’s no big deal. It happens a lot in our profession. I had a case that we took over kind of the last minute before a restraining order and the client had hired one lawyer, somebody I like a lot in the profession, but just wasn’t up to the task, he was just solo. And I heard from the other side, he was talking to the other side, and he said, “Well, I’m getting off the case. She’s hired her new lawyer.” And the other side said, “Well, who is it?” He goes, “Well, I can’t tell you because she hasn’t hired him yet, but you’re not going to be surprised.” Which is a big compliment to us. It was a complex, difficult case. And the fact that nobody was surprised, both the lawyer we were replacing and the lawyer that was on the other side.
Jake Gilbreath: Because when I called the lawyer on the other side, it’s like, “Okay, I’m representing this woman now.” He goes, “Yeah, I figured. It’s a complex, difficult case. I figured you guys would be showing up on it.” A lot of times it’s not a surprise if we’re the second or third lawyer. And so to the extent that there’s that nervousness that somebody’s going to get their feelings hurt or it’s going to be a difficult process or anything like that, it’s really not. A lot of times it happens the same day of the consultant, and it’s just not that big a deal.
Jake Gilbreath: And then Brian, talk to me about… The last question I get a lot about this, it’s like, “Okay, how are y’all going to get up to speed? This lawyer’s been representing me for a year, you guys are taking over.” What are you going to do to get you caught up, Brian, or the associate caught up or one of our senior associates caught up? How are we going to do that?
Brian Walters: Yeah, it’s not that difficult. Usually, midway through the case there’s at least a temporary order in place so we can see where we stand at the moment. You can read the order. These are the rules we’re operating under. Okay, well what are the issues that remain that are real? That’s part of the thing when a case first starts, a divorce, let’s say, you might have 10 different issues that might be issues, but several months into it or six months into it’s narrowed down to probably just one, two, or three that are real issues. And then we would need to focus on those. And those are generally either some type of property question, business valuation or a characterization of the property, which we understand and can get to the basis of pretty quickly, or need to bring in an expert to help us get to that point. Or kid issues, and those are going to be issues about some parents functioning or impairments or some other issue like somebody wants to move back to where they came from or a special needs child, something like that.
Brian Walters: So usually we’re down to two or three significant issues and you and I have dealt with, I think all of them at some point in one form or the other, every case is different, but we’ve dealt with similar cases in some form and can usually come up to speed pretty quickly on it. I’m not too concerned about that. Usually there’s discovery that’s been done at some point in the case, so that helps us figure out where everything is. And that’s been the least of my concerns. It’s like the one, this is a Saturday morning, we were retained after hours last night, Friday night for a hearing Monday morning. So we’re technically retained with zero business days to get ready for a temporary restraining order hearing, a real hearing. But fine, whatever. I was working on it last night, I’ll connect with the associate this morning to work on it some more. We’ll get together with the client on Sunday and we’ll be ready all Monday morning. It’s not a problem.
Jake Gilbreath: Yeah, the last question is, when’s it too late? And it’s really never, frankly. We’ve been hired, usually it’s for temporary orders, but hired, like you said the Friday before a Monday hearing, two weeks out from final trial, what have you. Sometimes the time the timing affects what we can and cannot accomplish. But as far as when’s the last time to do it, if it’s not working out with your lawyer, again, particularly if it’s communication, they’re not up to the task, and that’s not a slight on anybody, but there’s just some lawyers that you need a different approach, so it’s never too late to switch. Once somebody signed that binding… Probably the most painful consults I do are when somebody comes in and they said, “I was upset with my lawyer the whole time. I didn’t think he or she was doing a good job. I went to mediation with him anyway and we signed the agreement, but now can you get me out of this?” Or, “I just went and did my final trial and it went horribly. We weren’t prepared, my lawyer didn’t prep me, we didn’t have our exhibits or what have you.” And then it’s too late.
Jake Gilbreath: And then the consult ends with somebody going, and this has happened several times, and it’s hard when they say, “I wish I’d hired y’all before. I wish I’d hired you for my mediation, for my trial. Everything you’re telling me sounds way different than when I’ve heard in the whole process.” And then it’s too late. So reach out to us at like you just alluded to, Brian, it could really be at any time. Somebody hired us, and that was a referral from a lawyer, I believe, who she’s solo and just said, “I can’t handle this.” You’re talking to me on a Friday for a Monday hearing, I can’t do this. Call Brian and Jake and Brian talked to the client after hours and is going to go try a case on Monday. But make the call. We can do a consult, we can talk. And probably going to be surprised with, one, the ease of the transition, and two, what we can accomplish in pretty short order.
Brian Walters: Yep. All right, well that’s all we have for today. If you like what you heard today, do us a favor and leave a review. We appreciate all the feedback you can give us, especially when it helps us make this a better podcast. This concludes this podcast, and I’m Brian Walters here with Jake Gilbreath, and thanks for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening. Until next time.