Q: What can I do?
I am in a nearly year-long custody battle. It has been a nightmare. I have an atty and I was paying her out of every check for a while now. We currently have temp orders and the final court date is next week. Six weeks ago I was in a car accident and fractured my back in 4 places so I had to go on a leave of absence from work. I advised my atty of my accident and told her that once I was back to work I would surely pay her again. My child's dad has violated the court orders from day one. I kept note of all the violations and gave them to my atty to use as exhibits next week. She straight told me she wasn't going to do a really good job because she wasn't getting paid and she barely speaks to me. I was given the exhibits the other party will show but she has not told me if she submitted the important ones of mine or not. What do I do if she doesn't represent me the way she would if she was "getting paid"? And is she doesn't present the violations?
A:
I feel for you because you're in a tough spot. It's too late to change counsel, and you're better off with an attorney, even a disinterested one, than going on your own.
She has an ethical duty to be diligent in her representation of you. Even if she's not getting paid, she has a duty to put on the best trial she can.
If she doesn't do that, it's very unfortunate. An attorney doing a bad job at a trial, though, does not entitle you to a new trial and, in family court, it also is not something that can be appealed or reconsidered. Your only remedies at that point would be against your attorney, either as a malpractice suit or a bar charge. Also, for an appeal, if she doesn't present the "violations," those can't be appealed. You can only appeal what was put on at trial.
The fact she said she wouldn't do a good job is very concerning to me. But every attorney has been in that position, and you've still got to go get the job done. No reasonable attorney would say such a thing to a client because it ruins the trust between the attorney and client, and, worse, it exposes the attorney to a possible malpractice suit or bar complaint.
While I am sympathetic to her that she's not getting paid, it shows a lack of bad judgment to say something like that to a client, especially after you've been together for a year.
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