Jump to content
Sign in to follow this  
foolish

Sworn Declaration

Recommended Posts

CALIFORNIA: Can an attorney get in legal trouble for falsely swearing in a declaration things that are a untruthful, misrepresentations, or outright lies. If one of these can be proven what kind of legal trouble can a attorney get in?

Share this post


Link to post
Share on other sites

Do I have to file a special form with the court where this perjured declaration occured or do I just need to disprove the issues in the delcaration, aside from filing a complaint with the ABA.

There is no mistake in what the counsel's intention was.

Share this post


Link to post
Share on other sites

You don't file a complaint with the ABA, it is a trade association for lawyers, not a regulatory body. You file any complaint with the appropriate state body that regulates lawyers. In CA, it is the State Bar of California.

However, what was the nature of the alleged false statements? I've seen posts before where people thought the legal argument made by lawyers were "false statements" because they disagreed with the argument made. But argument is not a statement of fact, and won't give rise to issues of a false declaration.

Share this post


Link to post
Share on other sites

Actually, what I meant by the ABA was the State Bar. I understand that in your experience you came across people confusing “legal arguments with false statements” I’ll give the scenario and you decide for yourself if the attorney falsely swore under penalty of perjury certain things were true and correct. ONE EXAMPLE; The lawyer swore under penalty of perjury that I was “advised” of certain things that are material and detrimental to the case which I have evidence that clearly shows the contrary, that counsel refused to advise me of anything. . . .

Share this post


Link to post
Share on other sites

First of all, it is not uncommon for two declarations to say completely opposite things. The judge or the jury will decide which to believe, but that the judge or jury believes one side or the other does not necessarily mean the other declarant committed perjury. Perhaps, if a judge believes that perjury has been committed, the judge will refer the matter to the district attorney's office for possible prosecution, but that's rather uncommon. Let me give you an example. I once handled a case that was the second of two related cases. In the first case, a party had alleged an battery (not an assault) by virtue of having been targeted with a gun's laser sight. However, in a sworn (i.e., under penalty of perjury) discovery response, when asked to state the parts of the plaintiff's body that had been targeted by the laser sight, the response was "none." In the second suit, however, in a declaration that was sworn under penalty of perjury, the plaintiff stated that the laser sight was "pointed at my head." We made a lot of noise about perjury, and the judge ruled in our favor, but was not terribly interested about the possible perjury.

"ONE EXAMPLE; The lawyer swore under penalty of perjury that I was 'advised' of certain things that are material and detrimental to the case which I have evidence that clearly shows the contrary, that counsel refused to advise me of anything."

When you say your evidence "clearly shows the contrary," what do you mean? Are you saying the evidence proves that the "certain things" of which the lawyer was advised are not true? Or are you saying that the evidence proves that the lawyer was not, in fact, advised of the "certain things"? If it's the former, then this isn't at all a perjury issue. If your car is blue, but John tells me that your car is green, it would not be perjurious for me to say in a declaration that "I have been advised that 'foolish's' car is green." Of course, there would be a hearsy issue, but that's beside the point for your purposes. The point is that it's not a lie for someone to testify that he was told certain things even if those things aren't true.

Share this post


Link to post
Share on other sites

No, no what I am saying is that counsel swore under penalty of perjury that s/he advised me of certain things that counsel was obligated by law to advise me of before moving forward in order to satisfy a prerequisite under the applicable law that counsel was invoking.

Would it be a perjurious declaration where counsel swore under penalty of perjury that “counsel advised me of material facts that were detrimental to the case” " but did not" where counsel declared under penalty of perjury just to satisfy applicable law.

Share this post


Link to post
Share on other sites

Ok. I understand the distinction. Assuming it's a material fact, then yes, lying about it under oath would be perjury. However, this would likely come down to your word against his, and no DA is going to touch a perjury case based on that.

Share this post


Link to post
Share on other sites

I understand that I would have to prevail over the attorney’s “word” . Let’s say for example the attorney swore that they visited and consulted with me about the case, but there is no evidence that a meeting was ever held, my name does not appear for any type of scheduled meeting, no phone call is registered to my number. . . . I was never advised, underastand my predicament, would it be enough?

Share this post


Link to post
Share on other sites

foolish said...

Let’s say for example the attorney swore that they [sic] visited and consulted with me about the case, but there is no evidence that a meeting was ever held

The attorney's testimony is evidence.

foolish said...

my name does not appear for any type of scheduled meeting, no phone call is registered to my number. . . . I was never advised, underastand my predicament, would it be enough?

Your name doesn't appear where? No phone call is registered with whom/what?

Here's the thing. If Person A says that X happened and Person B says that X didn't happen, it's not as though A is going to get on the witness stand and say, "A happened," and be done, and B is going to testify that "X didn't happen," and be done. Assuming that the attorneys are doing their job, there is going to be an effort to uncover cirumstantial evidence that corroborates or tends to disprove one or the other of A and B's testimony.

In your case, certainly, if the attorney maintains a calendar of appointments and that calendar doesn't corroborate the attorney's testimony, then that is going to tend to disprove his testimony that the meeting occurred, and may be sufficient to cause a finder of fact to find in your favor. But it may not be enough to support a perjury charge or conviction since the standard of proof in a criminal case is "beyond a reasonable doubt"? Probably not. Perhaps the attorney will say that the meeting was arranged last minute and he didn't put it in the calendar. Perhaps he can present evidence that he frequently doesn't write things down on his calendar.

In any case, all you can do is report the suspected perjury to the appropriate authorities and cooperate in any investigation. You can't force a perjury prosecution.

Share this post


Link to post
Share on other sites

I understand that a perjury prosecution can’t be forced, but can that evidence that disproves the attorney’s sworn declaration be sufficient to sustain a complaint against the attorney at the State Bar. What other options would a person have when “their own” attorney has plotted against them.

Share this post


Link to post
Share on other sites

For your purposes, a state bar complaint/investigation isn't any different than a criminal prosecution. You can make the complaint and present whatever evidence you have, and the bar will investigate or not as it deems appropriate. I'm obviously in no position to evaluate your evidence or opinion about whether the bar will decide your evidence justifies an investigation and/or disciplinary action.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
Sign in to follow this  

×
×
  • Create New...