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  1. #1
    Join Date
    Jan 2011
    Posts
    8

    Default How to Plead Attorney Fraudulent Misconduct in Pending Action

    My question involves court procedures for the state of: Idaho

    Pro se Plaintiff-counter defendant-third party defendant, vs defendants-counter

    claimant and third party plaintiff, both represented by same counsel.

    The case has proceeded to plaintiff/third party defendant serving discovery requests on

    each : defendants and third party plaintiff.

    Defendant answers to discovery requests were timely and satisfactory, signed under
    oath, notarized by Attorney's assistant.

    Third party answers were a different story. Answers were not timely.

    Upon examination of the response, it was noticed that the attorney had notarized the
    third party answers himself. The notarized signature of the third party is clearly a
    digital image, not an original signature in ink.

    Pretty clear fraudulent misconduct from my view. It raises doubt that the attorney even
    has the authority of the third party to prosecute the complaint.

    The question now is how to proceed. If there is a particular filing ordinarily used in
    these situations which directly addresses the misconduct, I am unable to find a
    reference to it.

    I am considering the following:

    1) Motion to compel.

    Reasoning: Discovery response not signed by the person purported to be answering =
    same value as no response.
    The Motion would detail the false signature as justification and pray for appropriate
    sanctions.

    2) Motion to disqualify. I'm inclined to think a motion to disqualify due to
    fraudulent conduct (since it could cause a party significant prejudice) could be used,
    but such a motion seems to be used mostly where an attorney
    has represented an adverse party previously, or where the attorney will be a witness.

    I haven't been able so far to find an example where counsel has been disqualified from
    representing parties in a pending action due to fraud, but I'm hoping it's a possibility.

    I realize counsel disqualification is considered an extreme remedy and is disfavored.

    An added point for this approach is that the interests of the defendants and the third
    party in prosecuting their claims appear to conflict - discovery admissions obtained from
    the defendants show this conflict.

    I would appreciate useful information or comment.

    There is no need to advise me to hire an attorney. I'm acutely aware of the benefit that

    would bring.

  2. #2
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: How to Plead Attorney Fraudulent Misconduct in Pending Action

    You will NOT get another party's attorney disqualified. Forget that.
    You do not say what sort of discovery. Assuming these were interrogatories, you need to work out the discovery issue with counsel. If that can't be done, but only after you try to work it out, then you can file a motion to compel.

    Interrogatories are usually answered with all sorts of boilerplate objections which makes them very difficult to use at trial. What you do after interrogatory answers, figure out what information is really important to your case, and then serve them with requests for admissions on those items, so you can the interrogatories turned into something you can actually use.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: How to Plead Attorney Fraudulent Misconduct in Pending Action

    If you don't believe that proper answers were provided to your interrogatories, you can bring a motion with the court to compel proper answers. I suspect that, if your only objection is that you believe the notarized signature is not genuine, you're unlikely to get more by way of relief than the court ordering the production of a properly executed copy.

    Assuming that there is a conflict of interest between the other parties, that's generally something that a party affected by the conflict of interest would address and it is very often something that the affected parties can waive. That's not something we can effectively address without knowing the details.

  4. #4
    Join Date
    Jan 2011
    Posts
    8

    Default Re: How to Plead Attorney Fraudulent Misconduct in Pending Action

    Mr. Knowitall,

    Thank you for replying. Your suggestion regarding the motion to compel seems logical.
    I wouldn't have expected more in the way of relief really... if as I suspect, the third party is not aware of the case, the opposing attorney won't be able to produce
    "proper" answers, leading to an order to show cause, leading to what, more fraud? Sanctions against a party who didn't know they were even involved?

    It's possible the end result may be opposing counsel disqualification but with a more time consuming and painful process.


    You didn't mention what you thought re: disqualification of counsel on the basis of misconduct (fraudulent signature and notary) I'd be interested to read your take on that. (likelihood of success, complete folly, etc)
    I have since read about one such case in which opposing counsel was disqualified
    for misconduct... much higher stakes. Pretty interesting.

    http://ftp.resource.org/courts.gov/c...24.84-127.html

    regarding the conflicting interests, I do realize those are a matter for those prejudiced by them, however, the third party is likely not even aware of the complaint brought in his name.. are you suggesting the court would ignore the matter of the conflicting interests if noticed of it in a pleading by the plaintiffs/third party defendants ? (Obviously the third party couldn't waive if unaware of the proceedings, which is an implication of the faked third party signature)

    Plaintiff / third party defendants, (me, et al) are certainly prejudiced by the
    Third party complaint, if in fact it was without the authority or knowledge of the third party and was done for the purposes of the defendants and their counsel.

    I think the apparent conflict between defendants and third party would be relevant in support of the motion to disqualify.. it helps show the likelihood the third party is not aware of the complaint in his name, and also shows the significant injustice of it. The unaware third party's interests would be compromised for the defendant's purposes, (to win against me et al) and thus we would be prejudiced.

    I am currently preparing both of the motions. I have only a couple of days to serve if I want one heard at a status conference/hearing.
    I'm leaning toward the motion to disqualify counsel, as sensational as that's going to be.

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