Frequently asked question: Can I change my attorney?
The short answer is, yes you can. There is no law in South Africa that prevents anybody from changing attorneys. However, when appointing an attorney, you will have entered into an agreement with that attorney thus giving him or her a mandate to represent you. If the attorney’s mandate is terminated, the attorney will have certain rights based on that agreement.
There could be several valid reasons why a person would want to change attorneys. Nonetheless it should be done after careful consideration by the client.
What are common concerns?
Here are some examples of reasons why attorneys and their clients do not see eye to eye:
- The attorney is too slow, cannot be reached or does not give feedback.
- There is a lack of clear communication between the client and the attorney.
- There is a misunderstanding regarding the attorney’s fees and duties.
- There was a breach of confidence, by either the attorney or the client.
- The client does not agree with or does not wish to follow the attorney’s advice.
- The client does not cooperate with the attorney’s requests or vice versa.
- The client gave inaccurate or false information that will make it impossible for the attorney to represent the client or be successful with a case.
These are only a few of the most common reasons why clients want to change attorneys. This can happen at any time during a court case, before a trial or even during a trial.
What should you expect?
Often attorneys proceed with preparation for a case based on their familiarity with the law and will not give feedback on every step taken. They will also exchange documents or attend meetings where the client is not involved. This is one of the benefits of appointing a specialist attorney, as they will have the experience to take care of all the legal steps without burdening a client.
If you are uncomfortable with your relationship with your attorney, the first step would be to make a list of your concerns and make an appointment or write to your attorney to clarify any misunderstandings there may be. If you are unable to contact your attorney, you can approach the Legal Practice Council to assist you in finding the attorney.
Information on this process can be found on their Website.
How do I change attorneys?
If you are certain that you want to change attorneys, the next step is to terminate your attorney’s mandate. Another attorney cannot take over your case unless your previous attorney’s mandate has been ended.
It is considered unethical for an attorney to take over a case if he is aware of the fact that the person is another attorney’s client. It is always best to end a mandate in writing.
In a normal case where you pay your attorney’s account for work they do and you terminate the mandate, you can request that the attorney hand your file to you. The condition to this handing over of the file is that the client’s account in the case must have been settled in full.
In more complicated matters or matters involving a contingency fee agreement where no fees have been paid, an attorney is not obliged to hand your file to you without a certain agreement on how the costs will be handled. The usual process would be for a new attorney to give an undertaking to the previous attorney that the costs of the work done up to date will be paid to that attorney. The previous attorney can then agree to deliver your file to the new attorney.
Things to keep in mind
There are, however, a few things to keep in mind before you take your case to another attorney.
- Often a lot of frustration stems from misunderstandings about the court process and requirements for successful completion of case. This includes the time it takes to finalise complicated cases, especially when there is a severe backlog with court dates or difficulties with the defendant’s legal team. These are common hurdles in the South African legal system and does not automatically reflect incompetence on the attorney’s side.
- The new attorney will not be able to proceed with the case immediately as the previous attorney would have done. He will first have to be given time to consider the case, peruse the file and the evidence before he can proceed. This could delay matters.
- Furthermore, the matter of additional costs must be kept in mind. As mentioned above, the new attorney will first have to consider the case, peruse the file, all the court papers and the evidence. This could take many hours and additional fees for that time.
- The new attorney could suggest changing of the advocate appointed. This will mean that the new advocate would have to be consulted and they would also first have to peruse all the evidence and court papers. The new advocate’s consultation fees and time are also going to entail extra costs.
- Lastly, the new attorney may need to appoint new experts, obtain new documents or reports. As well as incurring extra costs, this will also extend the time taken to approach the court and finalise a matter.
Taking into account the above, we always advise that a client should be satisfied that the change is justified and that moving the case is going to be worth its while before terminating an attorney’s mandate.