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Jack Richard Lebowitz

Jack Lebowitz’s Answers

1,826 total

  • Are public officials such as attorneys, judges, referees etc. bound by oaths?

    Again, if all you have is sarcasm, feel free not to answer. It is my understanding that the tenure of the courtroom can be changed by the judge entering and then leaving the courtroom without dismissing or calling for recess. In which one would ha...

    Jack’s Answer

    Yes, public officials are bound by their oaths of office and parties in court are bound by their oaths to tell the truth. Proving a statement is perjury and violated an oath intentionally is difficult however, since the "truth" and "faithful discharge of my duties" and "upholding the constitution" are not simple facts and are subject to much interpretation and ambiguity.

    I also don't think there are magic Latin words and arcane procedures that control what judges can do in a courtroom. It's all pretty standard plain English language and governed by statutes and rules anyone can look up in a law book or on the web.

    Hope you don't think my disagreeing with you here is either being sarcastic or condescending.

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  • Isn't it illegal to counsel with an Attorney and they represent the opposing party on the same issues you counseled with you on?

    There have been three cases now and some of the issues remain the same as what I counseled with her on. She submitted a brief to the Judge on it and lied all through the brief. Her notes were in two different pens and even in pencil. She said I ca...

    Jack’s Answer

    An attorney may not have conflicts of interest where he represents you in one matter against an opposing party and then represents the opposing party against you in the same or related matter where he would use privileged or confidential information against you. This would include preliminary consultations where you interviewed this attorney and discussed confidential information but chose not to retain him.

    I'm wondering if your use of the word "counseled" is what you mean here, where you had some contact with this attorney but did not retain him and then later were retained by the other party. This happens more frequently than you might think where certain attorneys who practice family or divorce law in a given area are consulted by both parties. The party who does not retain the lawyer might think he has a smoking gun conflict and can get his opponent's attorney dismissed, but this does not always work out this way, depending on circumstances, owing to practical considerations.

    It happened to me last year, where an opponent petitioner in a custody case tried to have me thrown out because I had a five minute telephone chat with him when he was shopping for attorneys and chose not to retain me when his ex later did after he filed the petition. I had no recollection of speaking to him six months earlier and found a record in my phone logs. I asked him in court what the substance of our conversation and advice was, and he said I told him he did not have a good violation case and should not pursue it (probably why he didn't hire me).

    You might think a brief chat where someone tells me their ex is a horrible person and is violating some terms of a custody order and is rude in text messages is "confidential information" which would create a conflict of interest if raised, but the Judge in my case did not and I agree with him.

    If the rule were applied otherwise to casual "consultations" , a clever litigant could conflict every possible attorney in town by being used by his opponent by a five minute phone conversation with each that did not lead to any of them being retained.

    By the way, generalities about "my ex is a horrible person and a bully" are so typical in family law matters, they hardly rise to the level of confidential information. It's more YOUR weaknesses that might be used against you (telling your lawyer you spent ten years in a mental hospital or were in substance abuse treatment, only to have him raise that in a custody case against you).

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  • Driveway encroachment / definition of shared driveway

    My neighbor believes that my driveway is shared with him and as such he can park in it any time. I paid for a site survey and found that only about 1 foot of my driveway entrance is on his property. Does he have the right to park in my driveway?...

    Jack’s Answer

    I agree with Ms. Goldstein. You need to speak to an attorney and bring with you your deed, your neigbor's deed (available from the County Clerk or Registrar of Deeds, sometimes online) and survey map if any.

    This is not necessarily an easy question with a clear cut answer. It may depend on whether there are deeded rights called an "easement" that allows travel over the driveway regardless of who "owns" title to the property, the configuration of the lots and how the driveway came to be "shared" when the land was subdivided, and whether this passage may have taken place in the past with the previous owner without objection for a period longer than the "adverse possession" period. Lastly, there is an issue that travel along the easement/driveway may be permitted but not exclusive possession of the easement by either party, that is parking.

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  • If you have a attorney on retainer can they refuse to continue with your case.

    In 2012 I hired an attorney to handle a class three felony at the cost of $7500.00, the DA offered six years differed sentence, I have completed 2 years and 8 months of it with no violations of the law when I asked my attorney to put in a motion f...

    Jack’s Answer

    Generally speaking, the period of engagement when retaining an attorney for a criminal matter ends at the plea, trial and sentencing, unless you have specifically requested and paid for some post-conviction relief, such as an appeal, habeus corpus motion, representation with respect to parole, pardon, setting aside conviction, etc.

    You most likely haven't retained or paid your attorney for this new post-conviction representation, nor is he obligated to represent you. Very often, it's better to have a new attorney do the appeal. No attorney is ethically obligated to represent any particular client, and in fact, is ethically obligated to decline representation if he feels he cannot do a competent job, by reason of being too busy, or the venue is distant from his office, or he lacks experience in the subject matter (and yes, appellate work can require different experience and skillsets from trial work and attorneys often specialize in one or the other).

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  • I hired a lawyer who represented the opposing party before but I i did not know it, what do I do?

    I defaulted on a private student loan about 6 years ago. Over that time, I received numerous letters from debt collectors. The last letter I received was from a court saying that I was being sued by the loan agency. I hired an attorney and the ...

    Jack’s Answer

    Your question is confusing and I'm having trouble understanding what this "loan agency" is and its relationship to the private student loan lender, but generally speaking, an attorney who represented you defending or settling your claim against a lender cannot turn around and represent the lender or the lender's agent.

    If the money you are paying that lender is going to the a collections attorney, who is an attorney you hired to settle the loan with the lender or the collection agency they sold the loan to, it definitely sounds like there is an improper conflict of interest you should raise with "your" attorney, and if that doesn't produce a satisfying result, with a complaint to the the State Bar.

    The essence of a conflict of interests is that one cannot "serve two masters".

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  • How can I find a lawyer whose Pro Bono?

    In all seriousness, if recommended under ABR ethical rules to contribute a certain number of hours to people of low income and undeserved, I am looking for someone who is actually willing to help with the case of my loved one. It's so confusing an...

    Jack’s Answer

    If this is a criminal case, your loved one should be able to get free counsel. Call the local office of the public defender or county bar association for further information. Those lawyers might be able to assist you with the immediate problem, that is defending against the criminal charges. However, from your question, it seems like you might be looking for a pro bono attorney to "go after" a previous attorney like a public defender for some perceived shortcoming or malpractice. You are highly unlikely to find an attorney willing to go that fir free (especially if he or she wonders whether he might be the next lawyer you are dissatisfied with and go after, among other reasons).

    While the ethical rules do encourage attorneys to do pro bono work, they don't have to take on any particular client and many attorneys who do such work have to limit the amount of non-paying work they take on, for obvious reasons.

    Generally, public defenders do a good job with the resources they have and are quite knowledgeable and efficient, seeing that 99% of the cases are familiar issues about routine charges and most defendants have limited defenses that can be raised. That's why most charges are plea bargained.

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  • Does posting a private road sign give us liability protection?

    I live on a private road in Snohomish county. There are 6 houses on the road and we have an HOA for the road maintenance. There is currently no sign indicating that the road is private. If someone gets hurt on the road does have a sign indicating ...

    Jack’s Answer

    This is a more complicated question than it may seem to be. The road may be "private", that is not dedicated and accepted for maintenance by a community, but it does not mean necessarily "no trespassing" or "no entry". Typically, at common law, you could be liable for injury to "invitees" -- people who typically enter onto private property for business or other purposes, such as postmen, UPS drivers, trash haulers, etc., even though the property was private. The fact that the road is private would mean that you and the HOA would be potentially liable for injury caused by negligent design or maintenance of the road. I don't think this is what you have in mind. Alternatively, you could post a street sign saying "Private Way" which might indicate traffic was only to be on that road to access the six homes, not as a public thoroughfare, but this is probably not what you had in mind, either. Or you could post a "No Trespassing" sign or a gate, but you'd have to have mailboxes on the public way and could not expect postmen, UPS drivers or deliverymen to "enter" and "trespass" either.

    Lastly, aside from the general common law concepts I'm discussing here, Washington State often has some particular (and peculiar) state laws which deal with municipal law and land use, so it would be good to check with a Washington State attorney for further thoughts and suggestions about your issue.

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  • To stop a lawyer from speaking at trial is called what?

    Defendant attorney has committed fraud on the court and I want to stop him from making any statements at trial.

    Jack’s Answer

    Statements by a lawyer at trial are not evidence, they are arguments, summaries or characterization of the evidence. Evidence comes from the testimony of witnesses and the documents or things they may introduce as exhibits and testify about. Your (hopefully your lawyer) can either (1) object to the introduction of this evidence if it fails to meet the highly technical rules of evidence (a semester course in law school and one of the more difficult areas of law) or (2) cross-examine the witness to impeach the truth or relevance of the proffered evidence.

    Lastly, let me say that what clients often believe to be "lies" are simply two parties having radically different views of the true objective facts, and often neutral, unbiased eyewitnesses to an occurrence have very different recollections, perceptions and interpretations of what they saw, heard or read. People often end up in court because they feel the other party has acted in bad faith, and this colors their perceptions of what are "lies" and people tend to be biased towards their own interests and emotional needs.

    Changed this topic from professional ethics because I doubt the attorney is lying, he is just saying what his client has told him and what he believes he can prove at trial to litigation. Not to be argumentative, but I doubt the attorney had committed fraud on the court and cannot reasonably prove he had at least some reason to believe his client's claim or evidence was true.

    (in New Your State, an attorney's signature on legal filings means he knows the papers are not 'frivolous", a fancy way of saying phony or a "fraud on the Court" as you put it, but an attorney is an Officer of the Court everywhere and is not going to put his license on the line or be subject to discipline, possible sanctions or the loss of credibility with a Court by lying where the client then sandbags him by saying "I didn't tell the lawyer to say that, he told me it would make my case better if she lied for me).

    Changed topic from "ethics" to "litigation".

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  • How do I bring to court attention my daughter not cooperating with court order?

    My daughter is not cooperating with the court arranged custody paper concerning our joint custody of her 7 year old son. How do I bring this issue to the court attention She defiantly keeps him on days I supposed to have him. This have been going ...

    Jack’s Answer

    File an enforcement/violation petition with the Family Court that issued the order if one party is not complying with the parenting schedules set forth in the order.

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