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Thread: Malpractice Illinois

  1. #1
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    Default Malpractice Illinois

    I know I've asked this before, but no one answered, so I'll try again. Is it lawful for any attorney to submit false sworn to financial affidavits or reconsideration petitions willfully to the court?

  2. #2
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    That's not my area of the law, but I think it is pretty clear that it is improper for an attorney to submit a false affidavit to a court if he knows that the information contained in the affidavit is false.

    If he does not know that the information is false, the fact that he "willingly" submitted the affidavit means nothing. Everything submitted is presumably done willingly; I don't how you could force an unwillingly attorney to file an affidavit.

    I would also add, however, that the title of your post "Malpractice" is misleading. An attorney owes his duty to his client. If in the course of performing his duty he violates ethical standards, but does not harm his client in the process, he may be subject to sanctions for his unethical behavior but he is not liable for monetary damages to a third party to whom he owed NO DUTY.
    David K. Staub (www.illinoisbusinessattorney.com)
    Forum posts are not legal advice, are for informational and educational purposes only, and are not a substitute for proper consultation with legal counsel.

  3. #3
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    I suspect it will be very hard to prove that the attorney knew the information was false. And I am not sure what duty the attorney has to check information provided by a client. Who swore to the affidavit and what was sworn? Was it just that these were papers received by the attorney or that the attorney swore they were true....there is a difference.

  4. #4
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    Default Malpractice

    The affidavits were prepared by the attorney and the reconsideration petition was signed and sworn to by the attorney.This was a divorce case. The attorney knew her client was on workers comp and went to the reconsideration hearing arguing her client was working and paying the standard deductions.She presented the sworn to financial affidavit to prove his deductions and was going through each one with the judge. She got a childs support money cut in half.

  5. #5
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    Default Malpractice

    Sorry, my keyboard quit, probably a bad omen ,but I'll go on. Thank you for answering by the way. That court session ended with the judge telling them to bring in their deductions the next hearing. I know now that she knew for sure by going over her fees petitions as she for all intents and purposes quit before the next session.

    On her fees petition, it says that she knew several days before that hearing by a phone call from her client and research she did after that phone call. But there were other times as well when she had a duty to speak I think, when my ex refinanced all the marital vehicles up to the gills right after I told him about my house being in foreclosure. I lost my house by the way. I'm disabled and the child involved was battered by the attorneys client. I had an O.P.

    In dissolution cases, doesn't the child's rights always come first and isn't it illegal for an attorney to knowingly harm a child financially or otherwise ? Anyway, she never told the court he was making these refinances either, isn't that mandatory? And would any of this be fraud? I'm thinking I should just sue her and her client in personal injury court? Would I have a case?

    I was kind of iffy on the malpractice too, but now I'm not so sure it wasn't conversion, knowing about the refinances and just plain fraud. He ended up collecting a 119,000 w.c. settlement this year. He collected at least 2 w.c checks before the judgment,we were submitting written closing arguments. She said she found out right before the reconsideration on the fees petition, but never mentioned it to the court. Wouldn't that workers comp settlement be marital property? I've looked at some caselaw, and it seems like it is marital property for support. But I'm in St Clair county, boys and girls, home of the rottenest apples in the barrel. I had another thought in mind but I'm a lady. Thanks again for replying.

    Oh, before the stone throwers start, yes indeed I am only wanting the money. I wouldn't take him back for all the gold in heaven. BUT, this was my child and we were made homeless. Wouldn't you?
    Last edited by emilar; 08-15-2013 at 04:17 PM. Reason: typos

  6. #6
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    It's good that you are educating yourself on the law. More people should do that, just as more people should educate themselves on medical conditions before they talk to their physicians. However, ultimately just as you would discuss your medical condition with a doctor rather than self-diagnose yourself, your should talk to your lawyer about your concerns.

    I doubt that you have have any claims for monetary damages against your ex's attorney. The only party she owes a duty to is her client. If you believe she acted unethically, you may file a complaint with the Illinois Attorney Registration & Disciplinary Commission, which investigates and prosecutes misconduct complaints against attorneys. The ARDC may determine that the conduct requires disciplinary action, but that would not lead to any payments to you.

    Again, you should consult your lawyer about your concerns.
    David K. Staub (www.illinoisbusinessattorney.com)
    Forum posts are not legal advice, are for informational and educational purposes only, and are not a substitute for proper consultation with legal counsel.

  7. #7
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    Default Malpractrice

    Thank you DKStaub...It was just wishful thinking. I do enjoy this board..all boards here, very much...you guys really try to help...and that's important.

  8. #8
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    Unhappy Malpractice

    It's just really hard when someone cheats your child out of her home and support and probably got paid to do it. I never want to go to court again.

  9. #9
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    Default What is the point?

    What is the point of swearing on every piece of paper and every time you take the stand if lawyers can let their clients lie anyway? I thought only cops could do that. Really, has the court system become who can lie the best? Or who can hire the best liar. I am going to go audit some court sessions and count how many times people take the oath. Has it really sunk that low? Are all lawyers that apathetic? It is just sad.I lost my house and everything I had

  10. #10
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    emilar, I'm not trying to give you a hard time, really. But how do you KNOW that the attorney didn't believe what his client told him? That from the attorney's perspective, it was not knowingly and willingly participating in submitting fraudulent evidence, but unknowingly submitting information that he thought was true and wasn't?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

  11. #11
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    As dkstaub posted, you should consult your lawyer about your concerns.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

  12. #12
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    A lawyer ordinarily takes his or her client at face value. If the client lies to the lawyer, he can sometimes fool the lawyer, and thereby mislead the lawyer. This is especially true in family law and, of course, in criminal law.

    I used to practice family law and I cannot tell you how many times my client denied having an affair, then we go to court and lo and behold, the other side had caught my client red-handed having the affair, and has photos to prove it, and my client's denial was clearly dishonest. But a lawyer will not investigate the truthfulness of his client's assertion unless there is some obvious discrepancy that motivates the lawyer to do so. Our duty is to advocate for our clients, not to destroy their credibility. An exception is the District Attorney who prosecutes crimes; his duty is broader--to "do justice"-- and if the police story sounds too good to be true, then I think he does have a duty to dig a little deeper.

    Having said that, once a lawyer learns that his or her client is lying, a lawyer does have a duty not to further that lie by lying to the Court or letting the client lie to the Court. This is an ethical requirement enforced by State Bars all over the USA, so if that is what happened, then it may be an ethical issue that needs to be investigated. It would be ethically inappropriate for a lawyer to hand an affidavit to a judge that the lawyer knew was false.

    I am puzzled by the assertion that the lawyer swore to the truthfulness of the financial affidavit. Unless it is the lawyer's own affidavit of her own finances, she would not be swearing to the truthfulness of it. The person with first-hand knowledge of the information in an affidavit is the person who swears to the truthfulness of it. Sounds like your ex is the person swearing out the affidavit of financial facts. Lawyers represent clients, and do not swear to the veracity of the facts that are within the client's knowledge.

    I don't see any legal malpractice facts in the OP's scenario. Possibly an ethical question or two, maybe, but not malpractice.
    Last edited by complwyr; 08-28-2013 at 05:46 PM.
    Bob Bollinger, Attorney
    Board Certified Specialist in NC Workers' Compensation Law
    Charlotte, NC

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