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ANALYSIS
Changing Attorneys Once Divorce
Proceedings Have Started
There are times when clients change their attorney multiple times or the
adversary attempts to use changes of attorney against the litigant in a negative or
derogatory fashion. Why does this happen and what can be done?
Toby Kleinman & Daniel Pollack | December 22, 2021
It is not unusual for a litigant to seek to change attorneys during divorce
litigation. Procedurally, it is a fairly simple task to accomplish. A new
attorney is retained by a litigant and then some form of a substitution of
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attorney is filed with the court. The new attorney can then enter an
appearance on behalf of the litigant. But in many cases that is not the end
of the story. There are times when clients change their attorney multiple
times or the adversary attempts to use changes of attorney against the
litigant in a negative or derogatory fashion. Why does this happen and
what can be done?
Many divorce cases are straightforward. Parties find a way to divide
assets and share parenting of children in an agreeable way. Only about
2%-5% go to trial. Of the small percentage of cases that do not resolve
amicably, a high percentage of those cases involve issues of domestic
abuse. Where there is domestic violence (DV) there are frequently
allegations of mistreatment of children. Reputable research indicates
that there is a causal connection between spouse abuse and child abuse.
Trust between the attorney and litigant is a crucial part of a divorce
proceeding that involves domestic violence. Domestic violence cases are
more labor intensive and require special knowledge to properly litigate.
As a result, a domestic violence victim may not feel properly supported
or understood and the attorney may not present the case well to the
court. In fact, it’s important to people who represent victims of domestic
violence actions to understand that the case can mimic criminal
behavior. This is true whether or not criminal action is taken. The victim
needs similar identical attention. Many DV cases have an adjacent crime.
This needs to be recognized by family lawyers even where that is not
being criminally prosecuted.
Domestic violence does not stop merely because of a divorce proceeding.
A well-trained family lawyer should regard this type of matter as a case
following a serious crime in order to give fair representation in family
court. Abusers tend to fight for custody of children. When they do so they
open the door to what is commonly known as “Deny, Attack, Reverse
Victim and Defendant” (DARVO). This is a common strategy used by
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abusers. Changing attorneys opens the door to additional attacks of this
type. Therefore, a new attorney coming into a case where there are
allegations of DV—even if they have not themselves been independently
litigated—needs to be ready to deal with these attacks. In short, it is up
to the new attorney to put address DARVO in an assertive way.
Some litigants change attorneys when they feel a problem with
communication or the relationship just doesn’t “feel right,” or the litigant
does not believe their attorney has the requisite expertise. The decision
to change attorneys may be prudent. This can best be done by securing
recommendations from family, friends, or other domestic abuse victims.
However, changing attorneys can delay a case and possibly increase legal
fees. If the case is already on track for trial, the court may be reluctant to
delay. Unwittingly, a litigant may be viewed by the court as unstable—
not a desirable impression to make. So, it up to the attorney to have
ready answers on any or all of these possible issues.
Family lawyers are not prosecutors, yet a DV case often must be litigated
as if a family lawyer is indeed a prosecutor. When they don’t, the litigant
may feel as if their children and their rights are in jeopardy and that their
own attorney has empowered the adversary. Switching attorneys may
set the case on a better course. Therefore, if the attorney-client
relationship is not working and if there does not seem that a way can be
found to resolve the litigant’s concerns, changing attorneys can be a wise
move. The new attorney needs to be prepared for all of the potential
issues raised as a result, especially where there has been prior DV.
In cases where there has been no domestic abuse many litigants also
change attorneys. They may do so to try to reduce fees or to settle a case
which has been amped up and aggressively fought. In these cases,
mediation is a constructive alternative. Where DV or custody are not
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issues, litigants frequently simply seek easier resolution and sometimes
attorneys need to be prepared for that as well.
There are other issues that can be raised where a party changes lawyers,
including concerns from the court. There may be issues raised in court
previously that the new attorney is not aware of and there may be no
transcript. There may have been “in-chambers” conferences where there
is no ability to have transcription as there was no court reporter or no
audiotape. Critically, whatever the issue is that arises, it is up to the
attorney to be ready to deal with it.
The decision to switch attorneys is a difficult one. An attorney with
integrity will understand that.
Toby Kleinman is a New Jersey attorney and partner at Adler &
Kleinman. Daniel Pollack, MSW, JD is a professor at Yeshiva University’s
School of Social Work in New York. They can be contacted
at toby@adlerkleinman.com and dpollack@yu.edu, respectively. This
column is written for general informational purposes only and should not
be construed as New York-specific legal advice.