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  1. #1
    Join Date
    Jul 2011
    Posts
    4

    Angry Lawyer Obtained Illegal Medical Records and Failed to Respond to a Motion to Compel

    My question involves malpractice by a lawyer in the state of: Colorado
    I retained an attorney I paid him 3k for a child custody case. I noticed at our 1st initial staus conference he said nothing at all. He said it was the beginning and to wait. 2nd phone status conf, Still nothing let my ex walk away with 2 more days. My cell phone died, he called me back and could not give me details. Like he was not there. He agreed to a CFI that I disputed.I had my own CFI. He did not do his research and was lazy. The CFI was working with the oppsing party for 5 yrs. The CFI admitted on the stand that he never even asked my sons father if he ever used. And smiled when I told him i was suspecting my sons father was using. He was not a neutral party. And I paid him $1500 another $1500 from my sons father. I just cried. I never recieved a bill. 2 weeks before our trial he subpeoned medical records. I had found methadone. I gave him the address. Waited until 2 days and went to the oppsing party office threw the records on her desk and walked out. Failing to give her the subpeona. He did not ask for these records during the discover process. I sent him my check stubs for 2yrs, credit cards stmts 2yrs, car pymt info. Never giving to the oppsing party. They filed a motion to compel. And for me to pay for obtaining the illegal medical records. Which i had nothing to do with. Did I mention that i work for an insurance company so they thought I obtained them through my job. I almost lost my job. They served my job to see how I obtained those records. To make a long story short, The judge would not even look into the medical records, which had proven my sons father was full blown functioning heroin addict and had been since 7 yrs before he met me, 3 different methodone Out Patient clinics. I was in shock when I seen He was abusing heroin, cocaine and opiates for almost 20 yrs. The judge granted the motion to compel, they charge me $1300.00. And threw out the records. But gave my attorney 1 week to have a good legal reason why he should look at them. I called him on the last day and said what did you tell the judge, my son is in danger. My lawyer got upset and said "Now I have to worry about myself and if I get disbarred if they take legal action towards me". Then I asked him if I can ask for a new trial to get this evidence in. He said "why?". The judge gave 50/50 and almost made me pay his legal fee's all because I tried to protect my son. Let me say this I was 21 yrs old when I met my sons father. He was 29 and had been in his addiction according to his records for 7 yrs. So what I seen, Is what I thought was him until he started making mistakes. We had no spoons in our home. Now to appeal it will cost me 8k and 2yrs. And my son son still goes with a junkie. And no one cares. Can I sue him for malpractice? I lost my son to his incompetence and he takes no responsibilty to it and says " your gonna have to wait for him to mess up". On what cost, My 5 year old son? i fired him when he said that. Then he finally sent me a bill for 5k.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Lawyer Obtained Illegal Medical Records and Failed to Respond to a Motion to Comp

    So you are stating that your lawyer followed improper process such that he obtained medical records you wanted him to obtain, but as a result was sanctioned and you weren't able to use the records in court? You would potentially have a claim against him for the amount of the sanctions, if you had to pay them, but inadmissible evidence is inadmissible. You have told us that the court ruled the records both improperly obtained and inadmissible. How would you expect, after such a ruling, to introduce them at trial?

    If you were unable to present any evidence to support your contention that your ex- was using drugs, was a drug addict, or that his drug use posed any danger to the child, the court had no basis to deny your ex- access to the child based upon your allegations. Courts base their rulings on evidence. Also if you're stating that your ex- has been sober for seven years, it's not even clear that the judge would be concerned by your allegation that he used drugs in the past or struggled while getting sober. (It's not clear what you mean in some of your statements about his use and/or treatment.) You fired your lawyer when he told you that you had no admissible or relevant evidence? That's your right - but what evidence do you have?

  3. #3
    Join Date
    Jul 2011
    Posts
    4

    Default Re: Lawyer Obtained Illegal Medical Records and Failed to Respond to a Motion to Comp

    No, My lawyer did it on his own. I was not involved in the process.The problem is that he did not follow or do his research before he subpeoned the records. It's not my job to follow the civil rules or procedures it was his. "Competence"on him should have been there. he should have asked him (sons father) about the records and produce them through the discovery process. He had other cases and had a baby on the way also his mother had a stroke. He did nothing on my case and wanted to try and hurry and grab something 2 weeks before my trial. He never even intereviewed my witnesses who had seen my sons father abuse drugs. His plate was too full. If he thought for one sec that he was right, Then why did he ask me not to file an complaint and he will give me back my retainer plus the cost of my new lawyer? Both improperly obtained and inadmissible, This I did not know until trial. If I knew that they were, I wouldn't be asking you for advice. And those records would have been admitted. I would have made sure for my sons sake.

    There was proof, I also showed the court pics of my sons father (CFI) stealing his dying fathers medication. pics of him passed out with food in his mouth. Video's of him unable to walk or talk! The judge based his decision of the CFI report (child Family Investigator) that had been working with my sons lawyer for 5yrs. who was completely biased. He never even asked him if he (CFI) has done drugs. he based his decision on him having food in his fridge.You should see the transcripts. Lastly, What I said about 7 yrs is that my sons father records had proven that he was using 7 years before he met me. Thats a total of 20yrs of addiction to the present. We seperated in july/10.We were together for 10yrs. We had no spoons, lots of money missing and he had track marks on his hands. Which he told me was from him doing yard work. I had no clue to extent of his abuse until i seen the records or things would have happened differently. I did not lie, cheat or steal to court and told the truth until i seen the records. And this is what I ended up with my 5yr going to a junkie. The courts were so worried about violating a junkies rights, that they don't care about the rights of a 5yr old. And my sons father waited for 3mos after we seperated to file the paper work. And shaved his head 2 times do he knew he would be clean for a drug test(hair follicle). Only 1 test was taken so since that was clean they didn't care to do future testing.

  4. #4
    Join Date
    Feb 2011
    Location
    Arizona
    Posts
    387

    Default Re: Lawyer Obtained Illegal Medical Records and Failed to Respond to a Motion to Comp

    You could certainly petition the court to reexamine the matter. The job of determining what statutes and rules of court apply would fall to you or any attorney that you might retain. However, the matter of admissibility of the evidence previously introduced would still remain without introduction of new evidence. As for the rights of children, the legal fact is that (for the most part) children have no legal rights.

  5. #5
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    9

    Default Re: Lawyer Obtained Illegal Medical Records and Failed to Respond to a Motion to Comp

    Quote Quoting cheree1024
    View Post
    My question involves malpractice by a lawyer in the state of: Colorado
    I retained an attorney I paid him 3k for a child custody case. I noticed at our 1st initial staus conference he said nothing at all. He said it was the beginning and to wait. 2nd phone status conf, Still nothing let my ex walk away with 2 more days. My cell phone died, he called me back and could not give me details. Like he was not there. He agreed to a CFI that I disputed.I had my own CFI. He did not do his research and was lazy. The CFI was working with the oppsing party for 5 yrs. The CFI admitted on the stand that he never even asked my sons father if he ever used. And smiled when I told him i was suspecting my sons father was using. He was not a neutral party. And I paid him $1500 another $1500 from my sons father. I just cried. I never recieved a bill. 2 weeks before our trial he subpeoned medical records. I had found methadone. I gave him the address. Waited until 2 days and went to the oppsing party office threw the records on her desk and walked out. Failing to give her the subpeona. He did not ask for these records during the discover process. I sent him my check stubs for 2yrs, credit cards stmts 2yrs, car pymt info. Never giving to the oppsing party. They filed a motion to compel. And for me to pay for obtaining the illegal medical records. Which i had nothing to do with. Did I mention that i work for an insurance company so they thought I obtained them through my job. I almost lost my job. They served my job to see how I obtained those records. To make a long story short, The judge would not even look into the medical records, which had proven my sons father was full blown functioning heroin addict and had been since 7 yrs before he met me, 3 different methodone Out Patient clinics. I was in shock when I seen He was abusing heroin, cocaine and opiates for almost 20 yrs. The judge granted the motion to compel, they charge me $1300.00. And threw out the records. But gave my attorney 1 week to have a good legal reason why he should look at them. I called him on the last day and said what did you tell the judge, my son is in danger. My lawyer got upset and said "Now I have to worry about myself and if I get disbarred if they take legal action towards me". Then I asked him if I can ask for a new trial to get this evidence in. He said "why?". The judge gave 50/50 and almost made me pay his legal fee's all because I tried to protect my son. Let me say this I was 21 yrs old when I met my sons father. He was 29 and had been in his addiction according to his records for 7 yrs. So what I seen, Is what I thought was him until he started making mistakes. We had no spoons in our home. Now to appeal it will cost me 8k and 2yrs. And my son son still goes with a junkie. And no one cares. Can I sue him for malpractice? I lost my son to his incompetence and he takes no responsibilty to it and says " your gonna have to wait for him to mess up". On what cost, My 5 year old son? i fired him when he said that. Then he finally sent me a bill for 5k.
    Quote Quoting cheree1024
    View Post
    No, My lawyer did it on his own. I was not involved in the process.The problem is that he did not follow or do his research before he subpeoned the records. It's not my job to follow the civil rules or procedures it was his. "Competence"on him should have been there. he should have asked him (sons father) about the records and produce them through the discovery process. He had other cases and had a baby on the way also his mother had a stroke. He did nothing on my case and wanted to try and hurry and grab something 2 weeks before my trial. He never even intereviewed my witnesses who had seen my sons father abuse drugs. His plate was too full. If he thought for one sec that he was right, Then why did he ask me not to file an complaint and he will give me back my retainer plus the cost of my new lawyer? Both improperly obtained and inadmissible, This I did not know until trial. If I knew that they were, I wouldn't be asking you for advice. And those records would have been admitted. I would have made sure for my sons sake.

    There was proof, I also showed the court pics of my sons father (CFI) stealing his dying fathers medication. pics of him passed out with food in his mouth. Video's of him unable to walk or talk! The judge based his decision of the CFI report (child Family Investigator) that had been working with my sons lawyer for 5yrs. who was completely biased. He never even asked him if he (CFI) has done drugs. he based his decision on him having food in his fridge.You should see the transcripts. Lastly, What I said about 7 yrs is that my sons father records had proven that he was using 7 years before he met me. Thats a total of 20yrs of addiction to the present. We seperated in july/10.We were together for 10yrs. We had no spoons, lots of money missing and he had track marks on his hands. Which he told me was from him doing yard work. I had no clue to extent of his abuse until i seen the records or things would have happened differently. I did not lie, cheat or steal to court and told the truth until i seen the records. And this is what I ended up with my 5yr going to a junkie. The courts were so worried about violating a junkies rights, that they don't care about the rights of a 5yr old. And my sons father waited for 3mos after we seperated to file the paper work. And shaved his head 2 times do he knew he would be clean for a drug test(hair follicle). Only 1 test was taken so since that was clean they didn't care to do future testing.
    Check around and find an attorney who practices divorce law and has experience in difficult custody cases. You and your first attorney certainly were not on the same sheet of paper and, unfortunately, your son or sons (it's not clear if you have one or more based on your posts) are going to pay the price due to the joint custody arrangement with a parent with an alleged drug dependency problem. I feel for you and your child/children as I have seen too many cases of children neglected by a parent or parents battling addiction.

    While I sympathize with your situation, there are things you need to do going forward that you have not been doing. First off, stop using "my sons father"; if he is your ex-husband then refer to him as that. If you weren't married and he is the biological father then call him the biological father. It is just awkward to use son's father (one son) or sons' father (multiple sons) unless he is the biological father and you were not the biological mother.

    Secondly, accusing your husband of being a "junkie" may make you feel better (and he very may well be one) but the courts presently tend be be somewhat more sympathetic to people battling drug problems. It also may have the effect of detracting from the perception of your own stability. Instead calmly and rationally set forth his history of drug use, failure to complete drug treatment programs and the results of his inability to remain sober. If the admissible evidence is overwhelmingly in your favor, judges are likely to give you a favorable ruling.

    Finally, try to separate the issue of the possible malpractice by your first lawyer from the primary issue of you obtaining sole custody. Your new lawyer will need the background concerning the events that led to the court's custody ruling, of course, but try to stick to the facts concerning custodial issues. You are serving yourself and family the best by remaining as calm and composed as you can during this difficult process. Good luck.

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