attorney questioning and response

[wysiwyg]

Soc,

IN here.

In court yesterday and our witness was a phd in child psychology, appointed by the court to act as domestic arbitrator/case manager for the parties.  Court order last September noted that the BM was ordered to participate in mediation, 12 letters from BF requesting sessions, 2 phone calls and 2 letters from mediator asking for cooperation, BF finally filed a contempt action due to her failure to comply with teh courts orders.  Court found her in contempt and awarded BF attorney's fees, although noted that mediation was not working for the parties and recinded the current mediation order.  

1.  How can the court recind an order that was not asked for?  ie we asked for mediation to continue and the PHd testified it was beneficial to the parties, BM was the one vehimently opposed to mediation.

2.  On the stand our attorney and subsequently hers, asked the question "why did you not comply with the order"  her answer was "Due to attorney client privledges, I can not answer.  What the heck is that all about?

Thanks.

[socrateaser]

>1.  How can the court recind an order that was not asked for?
>ie we asked for mediation to continue and the PHd testified it
>was beneficial to the parties, BM was the one vehimently
>opposed to mediation.

Court can vacate an order for good cause shown. Obviously, the parties cannot agree on much of anything, so the court doesn't want to waste time -- judge wants to decide the matter.

>
>2.  On the stand our attorney and subsequently hers, asked the
>question "why did you not comply with the order"  her answer
>was "Due to attorney client privledges, I can not answer.
>What the heck is that all about?

The obvious inference is that she didn't comply because she believes that her attorney advised her to not comply. That is pretty huge. Your attorney should have jumped on that big time, because an attorney who advises a client to violate a court order, is subject to discipline (suspension/disbarrment).

Talk to your attorney (verbally). Suggest that the other attorney obviously advised his/her client to violate a court order, and ask your attorney to suggest to opposing counsel that he/she consider withdrawing from the case.

The implicit alternative is that your attorney actually has an ethical duty to report the other attorney to the State disciplinary authority, regardless of whether or not the attorney withdraws from the case. Of course, threatening directly would be a violation in and of itself, as well as possibly extortion. But, leaving your opponent with the prospect of having to bring another lawyer up to speed could be quite costly, and could put her at a substantial disadvantage.

So, it may be worth some subtle pressure behind the scenes. Your attorney may not have the courage to face up to the reality of what happened in court. But, under the Rules of Professional Conduct, what happened was a very bad thing and that attorney should be sanctioned in some meaningful way.