Attorney headaches

[oklahoma]

BM refused visits with my daughters (now ages 13 and 11) since March 2005.  We hired an attorney in September 2005, after numerous attempts to work things out outside of court.  He did not file a motion until February 2006--that was after some months of frustration and phone calls (and a few threats) from me.  But finally, a court date was set for the end of March.

Yesterday the attorney's assistant called to tell me that BMs attorney was requesting a postponement of the hearing, and strongly urged me not to fight it because BM would win anyway and it would just cost us more attorney's fees.

Today my attorney sent me a copy of BMs attorney's motion to postpone.  In it, BMs attorney had contacted my attorney a week ago, with no response from him or his office.  Also, included in the affadavit was argument that the hearing can easily be postponed because I have waited a year to do anything, so waiting longer won't matter.

I have felt for several months that my attorney has not properly represented me, but we stayed with him because 1. We did not want to further delay the hearing, 2. We have really liked his ideas and arguments for our case, and 3. He has been extremely patient in our payment arrangements.

QUESTIONS:
1. How will switching attorneys at this point affect the hearing?  A new date has not been set yet.

2.  I have considered representing myself--I'm a 2nd year law student.  How might this be viewed by the judge?  (We will have the same judge who ordered visitation stopped 3 1/2 years ago--she didn't like me much.)

3. Do I have a reasonable case to sue for malpractice, since BMs attorney is already using the delay and inaction to her advantage?  Should I wait to see how the hearing goes--cross our fingers and hope our attorney is not too busy to show up--or just get rid of him now?

[socrateaser]

>QUESTIONS:
>1. How will switching attorneys at this point affect the
>hearing?  A new date has not been set yet.

The facts suggest that your attorney has caused the postponement, and the reason why he doesn't want you to fight is because he will have to admit his own inadvertance in failing to respond to opposing counsel is why the judge will grant the continuance.

Since you're getting continuance anyway, I don't see how changing attorneys would matter to the court unless it causes some additional delay.

>2.  I have considered representing myself--I'm a 2nd year law
>student.  How might this be viewed by the judge?  (We will
>have the same judge who ordered visitation stopped 3 1/2 years
>ago--she didn't like me much.)

If you associate with an attorney who will help you, it will be viewed as a non issue. In either case, if you can represent yourself, then you should -- if you don't feel competent, then you shouldn't -- simple as that.

>3. Do I have a reasonable case to sue for malpractice, since
>BMs attorney is already using the delay and inaction to her
>advantage?  Should I wait to see how the hearing goes--cross
>our fingers and hope our attorney is not too busy to show
>up--or just get rid of him now?

As I previously advised someone else today, discharging your attorney is just letting him off the hook. He has an ethical duty of COMPETENCE to act with the skill and learning of an ordinary attorney in the community and to diligently and zealously advance his clients interests. Not responding to opposing counsel, is arguably beneath the standard of care if it actually injures you (which is not certain at the moment, as you have waited a REEEEAL long time to take any action on ths matter). But, not responding is also a violation of the Rules of Professional Conduct (evidently you haven't yet had the Professional Responsibility Class or sat for the MPRE).

If you like the attorney then try to get him to help you litigate the case, and then you do it yourself. If you're trying to become an attorney, then burning a bridge with this guy is probably not in your best interests, long term.