You can change lawyers during a partner or family member assault (PFMA) case in Montana. A retained lawyer can be replaced by a consent filed with the clerk or by court order. A public defender is assigned by the Office of State Public Defender and remains until the court relieves them. The practical questions are timing, your file, and what happens to fees already paid. This page covers each. It is part of our Montana Domestic Violence Guide.
What Montana Law Says About Changing Attorneys
The general statute is MCA § 37-61-403. The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, in one of two ways: on the consent of both client and attorney, filed with the clerk or entered on the minutes, or on the order of the court, on the application of either client or attorney, after notice from one to the other.
When an attorney is changed, written notice of the change and of the substitution of the new attorney must be given to the adverse party. Until then, the adverse party recognizes the former attorney (MCA § 37-61-404). In a criminal case the adverse party is the prosecution, and the new lawyer normally handles that notice. Individual courts may have their own filing practices for substitutions, so the mechanics are best left to the incoming lawyer.
| Change | How it happens | Source |
|---|---|---|
| Private lawyer to another private lawyer | By consent of client and attorney, filed with the clerk or entered on the minutes, or by court order on application after notice. | MCA § 37-61-403(1) |
| Public defender to private lawyer | You retain the new lawyer, who appears in the case. Assigned counsel remains until relieved by order of the court. | MCA § 46-8-103(1) |
| One public defender to another | Handled as an assignment or reassignment by the Office of State Public Defender. The general change-of-attorney statute does not apply. | MCA § 37-61-403(2) |
| Lawyer to representing yourself | The court must find that your waiver of counsel is knowing, voluntary, and intelligent. | MCA § 46-8-102 |
If Your Lawyer Is a Public Defender
Section 37-61-403 does not apply to assignments or reassignments of a public defender by the Office of State Public Defender (MCA § 37-61-403(2)). Once counsel is assigned, the assignment is effective until final judgment, including a direct appeal, unless counsel is relieved by order of the court (MCA § 46-8-103(1)).
That leaves two realistic paths. You may retain a private lawyer at any time, and that lawyer will enter the case and see that assigned counsel is relieved. Or you may raise your concern with the lawyer and the office. The statutes do not give a person with appointed counsel the right to pick a particular public defender. Our comparison of a public defender and a private lawyer explains the differences.
Timing and the Court's Calendar
The earlier a change is made, the less disruption it causes. A lawyer who enters the case a few days before the omnibus hearing or trial has to absorb the discovery, the motions already decided, and any deadlines already missed. Defenses and objections not raised at or before the omnibus hearing can be waived (MCA § 46-13-101), and a new lawyer does not automatically get those back.
A new lawyer can ask for more time, but the court may order a continuance only if the interests of justice require it, and the request is judged by the diligence of the person asking (MCA § 46-13-202). In a misdemeanor case there is another consideration. The six-month trial rule protects a defendant whose trial has not been postponed on the defendant's own motion (MCA § 46-13-401(2)). See how long a PFMA case takes.
Your File and Your Fees
Montana Rule of Professional Conduct 1.16(d) governs what a lawyer owes you when the representation ends. The lawyer must take reasonably practicable steps to protect your interests, such as giving reasonable notice, allowing time for you to employ other counsel, surrendering papers and property to which you are entitled, and refunding any advance payment of fee or expense that has not been earned or incurred.
On the file specifically, the rule says the lawyer shall deliver either the originals or copies of papers or materials requested or required by the client or former client and bear the copying costs involved. The lawyer may keep materials personal to the lawyer or created for internal use. Rule 1.8(i)(3) limits any retaining lien and requires delivery of materials reasonably necessary to protect your interest in the matter. In practice the new lawyer requests the file directly.
Whether any of a flat fee is refundable depends on your written agreement and on how much of the work was done. Bring the agreement to the new lawyer. For how fees are structured, see what a PFMA lawyer costs.
Before You Decide
- Name the problem. Is it communication, strategy, or the advice itself? A lawyer must keep you reasonably informed and explain matters so that you can make informed decisions (Rule 1.4). Unwelcome advice is not the same as poor representation.
- Raise it with your current lawyer. A direct conversation may resolve it.
- Get a second opinion. You may consult another lawyer without discharging the first.
- Check the calendar. Know your next court date and what is due before it.
- Do not let the case go unattended. Keep attending court and keep following every order until the new lawyer has formally entered the case.
Our list of questions to ask a PFMA lawyer is a useful checklist for that second conversation.
What Does Not Change
A new lawyer does not reset the case. The no contact order, your release conditions, and your court dates all stay as they are unless the court changes them. Rulings already made generally stand. And the decisions that belong to you, such as what plea to enter, whether to waive a jury, and whether to testify, remain yours under Rule 1.2(a) no matter who represents you. To see what the work should look like, read what a PFMA defense lawyer does.
This page explains Montana law and the Montana Rules of Professional Conduct in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.