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Where or to whom do I report questionable comments by a deputy attorney general?

Long Beach, CA |
Filed under: Professional ethics

I'm entering a stipulated settlement with a licensing board. My previous attorney was negligent in this matter and a related matter, and I am suing him for malpractice. Yesterday, my new attorney related to me that the DAG told her she is enraged that I am suing my former attorney. The DAG has intimidated my new attorney, threatening her with sanctions because she brought a motion to overturn the old stipulated settlement. The DAG's interest in my malpractice lawsuit seems beyond the pale to me and I believe it's having a negative effect on my attorney and this "new" settlement.

Attorney Answers 3

Posted

Having served as the Deputy Attorney General of Ohio, I'm very familiar with Attorneys General and their offices. Each employee of an Attorney General typical reports to a Unit or Section Chief and those people typically report to a senior attorney who in turn report to the Attorney General. The Attorney General is elected official. A written complaint to any or all of the people in that chain of command will get some type of response and if you can provide evidence to support your claim, may result in action being taken. Of course, all lawyers who work for an Attorney General are also subject to disciplinary action from the State Bar if they violate any ethical rules.

Attorney Mark Weaver is licensed to practice in Ohio, Pennsylvania and the District of Columbia. Any answers posted by Attorney Weaver are for general information purposes and do not create an attorney-client relationship. No one should rely upon this information without first personally consulting with an attorney licensed in the appropriate jurisdiction.

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Posted

These comments are based on the matter that you have posted here:

As an attorney who practices extensively in the field of licensing law, and as a former California State Administrative Law Judge who has presided at many many evidentiary hearings based on State license disciplinary proceedings, I have some strong doubts that the matter you report here has been correctly understood or added up. To put it plainly: these "facts" don't make sense against my knowledge of the territory.

In the first place, the circumstances in which the ALJ is allowed by statute or regulation to order the imposition of sanctions against counsel are extremely limited and, as all attorneys who practice professional and occupational licensing law know, the risk of such action by an ALJ is very low. What is more, if such an order is made, and they rarely are, it is not likely to survive an "of right" review by the Superior Court.

Even more importantly, there is no "motion" that can be brought to set aside a stipulated settlement of a licensing dispute. Theoretically, there could be a Petition for Writ of Mandate in the Superior Court but that is not a procedure that is the least intimidating to an attorney who practices licensing law. Writs are a regular part of licensing law and they are won and lost on a daily basis without any major drama or terror for the attorneys. (On the kinds of facts you make reference to, I don't doubt that your attorney is not optimistic about prevailing, if this is a Writ action.)

Alternatively, you could be referencing a Petition for Re-instatement to a licensing agency but, again, the consequences of a bad decision pose no risk for the attorney and carry no potential for intimidation or sanctions.

In all events, either you have a new settlement replacing an old one or you don't. The DAG does not make independent judgments and will not, in any event, make the decision as to settlement here -- that is up to the statutorily empowered licensing agency. The licensing agency couldn't care less what kinds of claims you are pursuing against a previous attorney and will not condition its approval of any settlement proposal -- whether or not the proposal is recommended by the assigned DAG -- on the fact or course of any pending malpractice claim against a private counsel.

Either you and your present counsel are not communicating effectively, in which case I recommend a candid and lengthy discussion between the two of you. Or your present attorney is trying (badly) to prepare you for disappointment, in which case I recommend a candid and lengthy personal discussion between the two of you. Yes, on these facts, some rolling up of the sleeves and frank discussion here is the remedy no matter the specific details of the origin of the problem.

In all events, in my view and based on my extensive experience in this very narrow practice area, I do not see this matter as one where your problem is to make any report to anyone about the conduct of the DAG. Even if the DAG did express surprise or disapproval about a malpractice claim against your previous attorney, so what? The DAG is the licensing agency's legal counsel, not "the decider." Whatever the problem is, it isn't the DAG.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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8 comments

Christine C McCall

Christine C McCall

Posted

Postscript: it is often the case that attorneys become hyper-careful in their dealings with clients who have sued other attorneys for professional malpractice. In fact, I know of many attorneys who as a matter of policy will not accept a client who has sued for legal malpractice. That may explain in whole or in part why the communications between you and your present attorney have become ineffective.

Asker

Posted

Yes, I too suspect this. I simply wanted to overturn the old settlement based on duress. I told the new attorney that would require going to Superior Court. She had 10 months to prepare and did nothing for nine months. She then put together this motion and sent it off to the Administrative Court which had no jurisdiction. I feel like the new attorney is sabotaging this whole thing.

Asker

Posted

Also, the DAG is not communicating with the licensing board. She claims she only has to communicate with the probation monitor and it is up to the probation monitor to reinstate my probation. The DAG told my attorney that I should get down on my knees and thank the monitor for allowing me to continue with my probation. My probation violation did not involve anything "bad" or criminal or anything like that. It was really very minor and related to the fact that I had a deal that I couldn't fulfill.

Christine C McCall

Christine C McCall

Posted

If it is any comfort, I would not accept a matter to try to set aside by Writ a stipulated licensing settlement on grounds of duress. I would have viewed that as a case where the client would inevitably be disappointed and I try to avoid those kinds of matters. Your attorney may have seen some potential and have identified the prospects for you as a "long-shot" -- but you need to remember that it is not the attorney that makes this kind of effort a long-shot; it is the facts and procedural history. In all events, a month is plenty of time to prepare a Petition for Writ. The usual problem is that it can take the better part of a year or more to get the record certified for submission to Writs and Receivers. It may be that your attorney views it as a necessity -- in your particular case -- to obtain a denial of a motion at the administrative level in order to meet the jurisdictional requirements of Writs and Receivers. I can't second-guess from here, but that strategy may well reflect the procedural history of your case. Once again, the remedy is: talk candidly with your lawyer!

Asker

Posted

The case was never in admin court, but I do appreciate your comments and wish I had hired you. It would have been money well spent.

Christine C McCall

Christine C McCall

Posted

Re: "the DAG is not communicating with the licensing board." Sorry, but you are making a lot of judgments that you don't have the experience or skill or the objectivity to make. There is nothing unusual or improper about the comments you added and attributed to the DAG. That statement is a point of view, very likely correct from the DAG's perspective, and can only help you and your counsel to understand the opposition. The likelihood of ending State license probation by a motion that the agreement for probation was obtained by duress is virtually zero in my experience. You are dissatisfied with your (second) attorney; and you are ready to make a formal complaint against the State's attorney. Very likely the probation monitor thinks that you have a pronounced tendency to hold others accountable rather than yourself. That is a really significant personal failing in the universe of licensing law. Every single licensing agency in the State is founded on the bedrock philosophy that license offenders need to take responsibility for their offenses before there is any issue of second chances.

Asker

Posted

I don't have that tendency and the probation monitor is aware of that. If you knew the case your answers might well be very different.

Christine C McCall

Christine C McCall

Posted

Of course. See my first sentence to my original response.

Posted

I am not sure exactly what you are asking, but even if I could direct you to the proper person, it is not likely that anything would happen.

Attorneys and parties to litigation have immunity from lawsuits arising out of that litigation except in very limited circumstances.

Prosecutors also have immunity from most actions involving their conduct in cases.

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