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I know of "litigation privilege" in pleadings, but what if opposing counsel knowingly lies in to survive a motion to dismiss?

Los Angeles, CA |

I've been in court for the past 2 years with this b*tch attorney who's working for free for her niece. She's outright lied in pleadings. She uses [brackets] to change words I've said into totally unrelated meanings, among other things.

I'm not an attorney but have been to law school. I suggested filing a 137b motion for sanctions (after giving the opposing counsel notice to correct her lies/mistakes). My attorney says that those motions are highly disfavored and would rather expose her lies during discovery. But discovery is very expensive, like $10,000 per deposition, and I worry that my own attorney is just trying to bilk me for more money.

Is a 137b motion really not the best way to go? Should I really wait til discovery to flush out all the facts?

Attorney Answers 5

  1. I'm not sure what you mean by "137b." In CA procedure there is a 128.7 motion and in federal procedure there is a Rule 11 motion. Both are for frivolous pleadings.

    You need to discuss this with your current attorney, who knows all the facts. He/she is correct, that generally sanctions motions are not well received, but that doesn't mean they are never granted. In fact, the are occasionally granted.

    Have an honest discussion with your lawyer and explain your concerns. You really cannot get a second opinion through this kind of site where we are only giving general information.

    I am licensed only in California and this response is provided as general information only. It is not intended to be legal advice. Legal advice must be based on the exact facts of the particular situation, and by necessity this forum is not appropriate for discussion of specific, exact facts. Contact a lawyer for more specific advice. My answer to your question on AVVO does not create an attorney-client relationship.

  2. Your attorney is right. If we could survey all attorneys who practice law in federal court, my bet would be that something close to 95%+ of them would agree that the motion you suggest is not the good strategic call and is rarely, if ever, used.

    Anyway, think about it, how are you going to prove in a motion for sanctions that the statements are untrue until you have done the discovery to get your evidence. More importantly, getting sanctions would not achieve your goal of ending this case.

    If you have so little trust in your attorney that you think he is bilking you, you need to find another attorney. An attorney-client relationship without trust is headed for disaster.

    Also keep in mind, clients who think they know what needs to be done because they have some prior experience, like law school, are a nightmare. What you learned in law school was book learning. What you learn after you start practicing law is real world experience about what will and won't work, what is strategically sound and what is not, etc. Give some thought to why you hired an attorney. Take advantage of the richness of his or her experience in considering the advice you are being given.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

  3. I am not familiar with the motion you suggest. I endorse the analysis of my two colleagues.
    One glimmer of hope - federal judges are normally very smart and will see through this in the end.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.

  4. I have been in a similar situation as counsel, and I echo the thoughts of the others who have responded. You need to hunker down with your lawyer and discuss strategies that you can use in court or in non-sanctions pleadings that will lead the judge toward his / her own conclusions regarding the veracity of your opponent. But, the best way to do this is in the normal course of litigating your case. The discovery is expensive, but there are ways to get to the issue you describe in a deposition quickly so that opposing counsel is aware of your counsel's knowledge. Judges have gotten deluged with sanctions motions over the years to such an extent that it is not unheard of for a judge to sanction the party seeking the sanctions. This proliferation of weak sanctions motions has unfortunately diluted the effectiveness of even the most meritorious motions. Keep an eye on the Judge, some have a way of letting you know that they know what is going on, and may even send a signal to that effect. Experienced trial counsel will know it when they see it and will capitalize upon it for your benefit. Good luck.

  5. professionalism applies to every single human endeavor. Lawyers, doctors, builders, subcontractors, farmers, bankers, businessmen, volunteers, and even retirees either practice professionalism in their daily lives or care nothing for it.

    I define professionalism as the conduct of an individual that demonstrates honor, integrity, and civil behavior toward adversaries in their line of work
    The plea for improvement in attorney behavior is longstanding. It is a fixture of discussions in legal periodicals and the basis for codes of civility suggested by bar associations and the courts.1 But this rising tide of commentary and efforts to effect change has had no substantial impact on improper attorney behavior
    While the integrity of counsel should be above attack at trial, it can still be argued appropriately that "it's [their] job to throw sand in your eyes"27 and that "an experienced defense counsel will attempt to 'twist' and 'poke' at the [opponent's] case."28 It is also appropriate for counsel to attack the credibility of opposing witnesses, including experts.29 The distinction is that these arguments as well as the attacks on witness credibility, if supported by the evidence and inferences drawn from that evidence, are not an attempt to impugn the honesty of counsel.30
    Misrepresentations occur when attorneys tell the court that a witness was under subpoena when he or she was not;68 make false statements in an adoption proceeding;69 make false statements to a bail commissioner;70 fail to advise the court where a client can be reached;71 conceal opposing counsel's continuance request, which leads to the opponent's default;72 file a civil complaint with facts known to be false;73 allege identical property damage in separate claims arising out of separate automobile accidents;74 make a false statement concerning a client's financial condition;75 sign a declaration for a declarant;76 misrepresent grounds for a continuance;77 fail to advise the court on a motion to dismiss, following a successful demurrer, that the plaintiff had already filed a timely amended complaint;78 misrepresent facts at a settlement conference;79 and fail to tell the court that another judge has issued a stay order in the case.80

    Once an attorney has made a misrepresentation, albeit an unintentional one, he or she has an affirmative duty, after becoming aware of the misrepresentation, to "immediately inform the court and to request that it set aside any orders based upon such misrepresentation; also, counsel should not attempt to benefit from such improvidently entered orders."81
    Before filing a motion for sanctions, the aggrieved attorney should bring the applicable statute, rule, or case law to the offender's attention. That person should be advised in a nonpatronizing fashion that his or her conduct appears to be a violation of an ethical standard. A subsequent request for sanctions should be made only if the miscreant has not changed his or her behavior. Nonetheless, as every attorney knows who has ever filed such a request, a motion for sanctions may be given short shrift by the court, which already hears far too many unsubstantial ones. Consequently, motions for sanctions should be supported by applicable statutes, rules, and case law in addition to a recitation of the relevant facts.

    The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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