How can I switch lawyers in the middle of a Motion to Dismiss?

[dontburnthep]

Our attorney continues to make serious mistakes, we wouldn't be in the middle of a motion to dismiss if it weren't for his poor advice, and we don't trust him or want him to represent us. Is it possible to switch lawyers? I know we would have to pay a new fee, but we're being billed $210 an hour for his poor service as it is, after the $2200 up front.

[AngelinaCat]

Yes it is possible to dismiss the original attorney, but can be difficult to do. You will have to make a formal Motion tot he Court to dismiss your attorney, unless you can get HIM to dismiss himself from your case, and it sounds like that will not happen.

Do you have another attorney lined up, or are you willing to take this case on yourself and go 'pro se'?

[dontburnthep]

Yes it is possible to dismiss the original attorney, but can be difficult to do. You will have to make a formal Motion tot he Court to dismiss your attorney, unless you can get HIM to dismiss himself from your case, and it sounds like that will not happen.

Do you have another attorney lined up, or are you willing to take this case on yourself and go 'pro se'?

I think he would happily dismiss himself. He is as tired of me (asking such pesky questions!) as we are of him.

I do have another attorney I have spoken with at length, but I'd also be willing to try pro se. We'll either not fight the dismissal or convert- the 7 can't be salvaged no matter what, IMO.

[AngelinaCat]

Depending on your situation, it might be best to let the case dismiss. Then take it up again either with a new attorney, or with you doing it yourself. The downside of that is that the Automatic Stay in a new case will be only good for 30 days.

I will PM justbroke, our resident Pro Se guru and ask him to review you case.

Meanwhile, will you be able to get any kind of refund from your attorney?

We made a motion to dismiss our incompetent attorney and go pro se, which would probably have gone through, except that our Judge said to us, that "essentially, you are already done. I can grant the motion, but it will delay your case." So, after hearing that, we let the Judge dismiss the motion.

[dontburnthep]

Depending on your situation, it might be best to let the case dismiss. Then take it up again either with a new attorney, or with you doing it yourself. The downside of that is that the Automatic Stay in a new case will be only good for 30 days.

I will PM justbroke, our resident Pro Se guru and ask him to review you case.

Meanwhile, will you be able to get any kind of refund from your attorney?

We made a motion to dismiss our incompetent attorney and go pro se, which would probably have gone through, except that our Judge said to us, that "essentially, you are already done. I can grant the motion, but it will delay your case." So, after hearing that, we let the Judge dismiss the motion.

Not only will we not get a refund, we will likely be getting a bill. He hasn't billed us for any of the motion to dismiss work, I suspect because he hopes we will convert to a 13 and he can get another fee that way. (He's been literally hounding us to commit to a 13) If we get rid of him, I bet I'll be seeing a bill.

Right now, we're supposed to be completing interrogatories and producing documents for the motion to dismiss. We do not want to work with him on it at all. No longer trust him.

[justbroke]

Our attorney continues to make serious mistakes, we wouldn't be in the middle of a motion to dismiss if it weren't for his poor advice, and we don't trust him or want him to represent us. Is it possible to switch lawyers? I know we would have to pay a new fee, but we're being billed $210 an hour for his poor service as it is, after the $2200 up front.

If you want to do this, have your attorney "withdraw", then you should work with them on a transition to a new attorney. You'll probably find that new attorneys won't want to talk to you until the other attorney withdraws.

On the other hand, I don't understand the issues with the attorney so I can't comment on whether it was the attorney or your situation from the start, that caused the Trustee to file a motion to dismiss.

I might also caution you to be careful with just considering pro se. TO me, without any other information available, it appears that there is some sort of asset or income issue in your case. I tend to discourage people from filing pro se when such conditions exist unless they fully understand why their case is/was being dismissed and how they can legally maneuver.

If it's an income issue, then you'll likely be in a Chapter 13 and that could be difficult to confirm or, at best, ratify and confirm a plan that has a reasonable chance of making it through the 3-5 years.

What's your end game and plan?

[despritfreya]

I agree with JB. I only want to add that if you have another attorney ready, willing and able to take over the better approach is to have the new attorney draft a Motion for Substitution of Counsel that both attorneys sign. The new attorney files the Motion along with an Order approving it and, there you go. . . This way there is no gap without representation. I do this all the time. In fact, just did one last week. Not a big deal.

Des.

[dontburnthep]

On the other hand, I don't understand the issues with the attorney so I can't comment on whether it was the attorney or your situation from the start, that caused the Trustee to file a motion to dismiss.

I might also caution you to be careful with just considering pro se. TO me, without any other information available, it appears that there is some sort of asset or income issue in your case. I tend to discourage people from filing pro se when such conditions exist unless they fully understand why their case is/was being dismissed and how they can legally maneuver.

If it's an income issue, then you'll likely be in a Chapter 13 and that could be difficult to confirm or, at best, ratify and confirm a plan that has a reasonable chance of making it through the 3-5 years.

What's your end game and plan?

Our case is full of issues, the most serious being the Ransom decision coming down after filing but before 341. We lost 1K off our means test unexpectedly and suddenly. We did very little pre-planning, because we passed the means test without any planning. I had not done the proper research and took the attorney's bad advice on this issue. We should have done the pre-planning anyway, even if we THOUGHT we were good for getting the 7. We were using and paying our cards up until filing- the attorney knew this and said it wasn't a problem and let us file anyway. My husband had a one time longevity payment in October that we should have let age off our income before filing. Since we were paying our cards up until filing and living off those cards, we didn't have the funds to get any acceptable exemptable expenses such as child care (I work from home) or purchasing a new vehicle (ours are 21 and 11 years old).

Basically, he knew there were problems all over our case, he thought we'd get through the 7 without scrutiny so didn't bother having us correct any of those issues, took our $2200 and then when the motion to dismiss was filed, said that he would not work with us unless we committed to a 13.

I accept full responsibility for the outcome because I failed to do the proper research and took him at his word. I was scared and overwhelmed. Lesson learned.

We are not positive whether we want to ride out the motion to dismiss or simply convert to a 13. Because of all of the problems, we can't salvage a 7 from this filing. We'd like to end up dismissed without prejudice so we have the option of filing again, but aren't sure that we'd take that option, we'd just like to have it.

I don't know that a successful 13 plan can come out of this filing for the same reasons. We can't go 5 years without at least 1 new vehicle, we need child care, we desperately need medical and dental care, my kids need braces, etc etc. With Lanning, we can get maybe some of that into play, but the basic numbers on our filing are bad. They reflect the way we were living pre-filing, not how we would be living if we didn't have 75K in credit card debt.

[dontburnthep]

I agree with JB. I only want to add that if you have another attorney ready, willing and able to take over the better approach is to have the new attorney draft a Motion for Substitution of Counsel that both attorneys sign. The new attorney files the Motion along with an Order approving it and, there you go. . . This way there is no gap without representation. I do this all the time. In fact, just did one last week. Not a big deal.

Des.

Thanks for this. I'll know what to ask for if I proceed. I do have another attorney in mind.

[justbroke]

I see that my friend, Des, has provided excellent advice as always. I really feel sorry that you weren't able to do some pre-planning! Even with a Chapter 7, the $489/month allowance, per car, for ownership would have worked wonders for your disposable income. May I ask if you were over the median as well? If you were, then your attorney should have known that you'd be subjected to scrutiny and "attacks" on your income and expenses!

[dontburnthep]

We are over median but not much. We would have easily qualified if we'd replaced our aging vehicles pre-filing. The lawyer didn't even know what Ransom was until the decision came down and the UST filed his POA statement due to the decision- if that gives you an idea what kind of lawyer he is. He also didn't know about Lanning until I told him. We argued back and forth quite a bit about how what I was trying to do by using a forward looking approach for a potential 13 was "fraud."

Basically, I don't know what is best for us and I need an attorney that I can trust to advise us. Converting to a 13 may be the best thing but I don't know and I don't trust a word that this lawyer says. So that's why I want to switch. The outcome might be the same as if he remained our lawyer- but at least we would know that it was the best option for US and not HIM.