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Ask Dimitry K., Esq. Your Own Question
Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 41220
Experience:  I provide basic personal injury advice to my clients in my own practice.
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I am pursuing a civil defamation suit as a self represented

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I am pursuing a civil defamation suit as a self represented litigant, the other party has retained counsel, he used his counsel, by slandering me to him and then his attorney called to report the slander to the investigative bodies, after three investigations all of which were determined unfounded, including him admitting to lying and signing an affidavit attesting to the same. I intend to call his counsel as a material witness, does that create a conflict for his counsel? The defendants cross claim, restates his previous allegations as if to say now they are true. Should I amend my complaint to include his cross complaint as continuing libel? Finally I stipulated to a non-jury trail, so I am now looking to take those funds and hire counsel, it is my belief that I can defer to counsel at any time before trial, am I correct?

Thank you for your question. Please permit me to assist you with your concerns.

Calling his attorney as a potential witness does create a conflict. The attorney can claim privilege and not testify, since by testifying he could damage his client's position. You should amend the complaint to point out the libel since by failing to respond to it, it can be later deemed to be truthful (as you did not contest it). You are likewise correct, you can always seek counsel, it is just that during trial to being an attorney on board the judge would have to allow it, something that the judge cannot control or rule over prior to trial. The fact you are self-representing now does not mean that you have to remain that way for the duration of the process.

Good luck.

Customer: replied 3 years ago.

Thank you for your response, I need a point of clarification, you mentioned amending my complaint to include the libel involving defendants current counsel, correct? You went on to state that it could be deemed truthful as I didn't contest it. Please let me know if I have my bases covered, I did directly state that defendant used his current counsel as an agent to his defamation in the original complaint. I also made it a part of my case management statement, and asked the court to review it as a conflict and stated that I intended to call his current counsel to the stand, my question is since he made the choice to call and report the allegations for defendant who was at adult age, doesn't that action remove attorney client privilege? Should I have mentioned it at the case management conference as the judge did not mention it and according to court rules he is supposed to review our statements.

Thank you for your follow-up, Nusun.

My apologies but I stated to amend the complaint pertaining to libel, not to attach your counsel to it. It only becomes defamatory if the counsel was aware of the claims as false, and if all he was doing was representing his client's interests, no judge would deem the attorney's behavior as beyond the scope of his representation. Using the attorney as an agent is not quite enough, you would have to show that the attorney was aware directly that the information was false and filed it anyway.

No, it does not remove his attorney-client privilege for removal--it simply makes that attorney responsible as far as reporting but no further. He cannot discuss the inner communication with you or with anyone on the stand for that would get him disbarred.

Good luck.

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