Where to from here?

[Dadxl5]

Hi Socrateaser,
   I've been doing some work since we last spoke.  Here's what I have so far.

   1.  Possible criminal exposure
   2.  Exposure to State Bar investigation/disciplinary action
   3.  Grounds for Contempt or Non-Compliance filing in Family Court

Follows are some details;

   1. Civil Court? - Criminal charges
       a.  I believe I have evidence to prove 3 separate counts of Fraud, 2
            counts of conspiracy, 1 count of extortion/coercion and 1 count of
            malice

   2.  State Bar - RPC Violations
        a.  Conflict of Interest
        b.  Contacting Opposing Party
        c.  Inducing to Violate
        d.  Advising to Violate

   3.  Family Court
        1.  Contempt might be proven upon conviction in Civil Court?  Big IF.
        2.  Non-compliance (school and therapist evidence is beginning to            
             pile up)


1.  I talked to the D.A.  They said "Call the Bar."

2.  I talked to the Police, they said go to Family Law and put it all in front
     of the judge that heard the initial case

3.  I talked to the Bar and they said "File a complaint, list only the RCP
     violations.  We don't do the fraud stuff."

4.  I haven't called CPS.  My experience is they're not very skilled.  It
     would escalate the mother no end.

5.  I haven't tried to find counsel that would do the fraud et al on
     contingency.  Is that even how it's done?

6.  1, non-ordered weekly visit (for homework) has been withdrawn, all
     ordered telephone calls (3 per week) have ceased, my calls are not
     returned, nor are my emails responded to.  She is forcing all
     communication to go through our son.  Which I try to keep to a
     minimun to spare him.


My question is what do you think I should do?  Should I start with Family, then to the Bar and hope either of them refer to the D.A.?

I don't have the money for strong legal counsel and I can't survive another bout of malicious prosecution.  

My son's grades have gone from A- to F in the last 4 months under his mother's management and he's shutting down and getting in trouble.  
 

[socrateaser]

>Hi Socrateaser,
>   I've been doing some work since we last spoke.  Here's what
>I have so far.
>
>   1.  Possible criminal exposure
>   2.  Exposure to State Bar investigation/disciplinary
>action
>   3.  Grounds for Contempt or Non-Compliance filing in Family
>Court
>
>Follows are some details;
>
>   1. Civil Court? - Criminal charges
>       a.  I believe I have evidence to prove 3 separate
>counts of Fraud, 2
>            counts of conspiracy, 1 count of
>extortion/coercion and 1 count of
>            malice
>
>   2.  State Bar - RPC Violations
>        a.  Conflict of Interest
>        b.  Contacting Opposing Party
>        c.  Inducing to Violate
>        d.  Advising to Violate
>
>   3.  Family Court
>        1.  Contempt might be proven upon conviction in Civil
>Court?  Big IF.
>        2.  Non-compliance (school and therapist evidence is
>beginning to            
>             pile up)
>
>
>1.  I talked to the D.A.  They said "Call the Bar."
>
>2.  I talked to the Police, they said go to Family Law and put
>it all in front
>     of the judge that heard the initial case
>
>3.  I talked to the Bar and they said "File a complaint, list
>only the RCP
>     violations.  We don't do the fraud stuff."
>
>4.  I haven't called CPS.  My experience is they're not very
>skilled.  It
>     would escalate the mother no end.
>
>5.  I haven't tried to find counsel that would do the fraud et
>al on
>     contingency.  Is that even how it's done?
>
>6.  1, non-ordered weekly visit (for homework) has been
>withdrawn, all
>     ordered telephone calls (3 per week) have ceased, my
>calls are not
>     returned, nor are my emails responded to.  She is forcing
>all
>     communication to go through our son.  Which I try to keep
>to a
>     minimun to spare him.
>
>
>My question is what do you think I should do?  Should I start
>with Family, then to the Bar and hope either of them refer to
>the D.A.?
>
>I don't have the money for strong legal counsel and I can't
>survive another bout of malicious prosecution.  
>
>My son's grades have gone from A- to F in the last 4 months
>under his mother's management and he's shutting down and
>getting in trouble.  

If you believe that an attorney has violated the RPC, then file a complaint and the Bar will investigate. This is a totally separate issue from everything else.

If you believe that a crime has been committed then you need to discuss it with the district attorney -- again this is a totally separate issue.

If you believe you have grounds for contempt, then you can file for a contempt action, but don't do it on any issue that you intend to bring before the DA, because a CA contempt action is quasi-criminal and if you prosecute the case, then the DA cannot (prohibited by double-jeopardy clause of constitution).

If you believe that your child's grades are suffering as a consequence of the other parent's actions, then you should file a motion to modify in family court, based upon the substantial change in circumstances (grades going from A to F).

Civil fraud is a particulary tough thing to prove. You must prove that the other parent made an affirmative misrepresentation of fact intended to induce justifiable detrimental reliance and which caused you real damages, and you must prove it by clear and convincing evidence.

I don't know exactly what facts you allege meets all of the above elements or how strong the evidence is, so I can't really comment on this issue without more.

[Dadxl5]

Soc,
Thanks for getting back so quickly.

As far as detrimental reliance goes, I suspect my definitions are likely not the exact same as the laws.  Does that mean they intentionally did something that made me have good reason to rely on them, to my detriment?

1.  Opposing counsel submitted a declaration they said was from the visitation monitor.  It stood in direct contradiction to all the monitor's weekly reports.  When I saw the signature page, I knew without question the signature was my ex's handwriting.  (they produced it just after the hearing started.)  I pointed it out to my atty and he said nothing.  (he was getting alot of litigation from this other attorney and quit 2 months later) I've tried getting ahold of the monitor twice but he doesn't return my calls.

2.  They submitted a declaration from my ex's sister that a great deal of weight was given to by the court.  I spoke to the sister last year and she said she was never deposed by opposing counsel.  Never even talked to him, in fact.  And that my ex threatened to throw her out of the house if she didn't sign the last page.  She agreed to sign a new declaration, but got cold feet.

3.   Opposing counsel was my atty of record before the IRS on the day he showed up for the hearing in family court, representing my ex.  Later, he sent to my former atty, a letter he said he'd sent to the IRS withdrawing as counsel.  The IRS didn't have that letter in the file and even asked me to provide in writing, a letter dismissing him from a second part of action with the IRS.  

     Is part of that conflict of interest?
     Is another part fraud?  (He never sent any letter to the IRS.  He DID produce one after the custody hearing, though.)


Isn't evidence of forgery a crime the D.A. would investigate?  They told me they usually only take things through referral from other law enforcement agencies, etc.  

I'd like to walk away from all this and just do the best I can to grab whatever time with my son that we can get.  But she's broken off all communication.  She's halted one of our (arranged out of court) visits and all of his and my phone calls.  So I don't want these parts to get worse.  

What you do here is a wonderful thing.  Thank you.  If and when i can, i will donate to the site to keep it going.

[socrateaser]

>Soc,
>Thanks for getting back so quickly.
>
>As far as detrimental reliance goes, I suspect my definitions
>are likely not the exact same as the laws.  Does that mean
>they intentionally did something that made me have good reason
>to rely on them, to my detriment?
"Justifiable" means that it was clearly reasonable for you to have relied on the mispresentation when it was made.

"Reliance" means that you actually changed your position based on the misrepresentation.

"Detrimental" means that you actually suffered an injury/damages as a consequence.

>1.  Opposing counsel submitted a declaration they said was
>from the visitation monitor.  It stood in direct contradiction
>to all the monitor's weekly reports.  When I saw the signature
>page, I knew without question the signature was my ex's
>handwriting.  (they produced it just after the hearing
>started.)  I pointed it out to my atty and he said nothing.
>(he was getting alot of litigation from this other attorney
>and quit 2 months later) I've tried getting ahold of the
>monitor twice but he doesn't return my calls.

If you can prove that the declaration was material in causing the case to be resolved against you, and you can prove that the ceclaration was a forgery, and you didn't know at the time that the doucment was fraudulent which is why you didn't raise the issue, then that would be extrinsic fraud on the court and would be grounds to set aside the judgment/order.

If you knew that the document was fraudulent and did nothing, then that is intrinsic fraud, which could have been discovered through the use of due diligence and the discovery process, and you have no claim. The court will not set aside a judgment/order because a litigant's attorney commits malpractice, except in a criminal case, where the defendant has a 6th Amendment right to "effective counsel."

>2.  They submitted a declaration from my ex's sister that a
>great deal of weight was given to by the court.  I spoke to
>the sister last year and she said she was never deposed by
>opposing counsel.  Never even talked to him, in fact.  And
>that my ex threatened to throw her out of the house if she
>didn't sign the last page.  She agreed to sign a new
>declaration, but got cold feet.

If she won't testify that the document is a fraud, then this is a dead end, unless you subpoena her as a witness and take a handwriting exemplar and have an expert testify that it does not match the signature on the declaration.

>
>3.   Opposing counsel was my atty of record before the IRS on
>the day he showed up for the hearing in family court,
>representing my ex.  Later, he sent to my former atty, a
>letter he said he'd sent to the IRS withdrawing as counsel.
>The IRS didn't have that letter in the file and even asked me
>to provide in writing, a letter dismissing him from a second
>part of action with the IRS.
>
>     Is part of that conflict of interest?

Yes, but it won't change the outcome of your case. All you can do is complain to the State Bar.


>     Is another part fraud?  (He never sent any letter to the
>IRS.  He DID produce one after the custody hearing, though.)

Fraud requires you to suffer injury as the result of the misrepresentation. I don't see that you were actually damaged by the conflict of interest or anything else that the attorney did, regarding your family law case, so there's no fraud -- just some lying.

>Isn't evidence of forgery a crime the D.A. would investigate?
>They told me they usually only take things through referral
>from other law enforcement agencies, etc.  

The DA wants to go after big crimes with the least amount of resources. You are asking for a big investigation of a little crime. You won't get much traction with this.
>
>I'd like to walk away from all this and just do the best I can
>to grab whatever time with my son that we can get.  But she's
>broken off all communication.  She's halted one of our
>(arranged out of court) visits and all of his and my phone
>calls.  So I don't want these parts to get worse.  

If you are ordered to receive A, and you do not receive A, then that is contempt. If you have evidence of the contempt beyond all reasonable doubt, then file a contempt motion and ask that the court make appropriate sanctions and orders.

It's really not that complex. The hard part is to have some good objective evidence of the contempt.