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Ely
Ely, Counselor at Law
Category: Personal Injury Law
Satisfied Customers: 87444
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello Ely, Nice to see you again! I have a hard question,

Resolved Question:

Hello Ely, Nice to see you again!

I have a hard question, so feel free not to answer it, as it may have no real answer. I am going to simplify it by making it sound like a test question (i never practiced law, so school questions are all i know. haha) .
1. 2 plaintiffs, A and X (me) are in 2 lawsuits in a federal case against the same defendants for their illegal use of spyware and recordings made and used in court to intimidate her and prejudice her divorce case. Their lawsuits have been joined for pretrial purpose.
2. Plaintiff A has her brother in law (B) representing her against her ex-husband (C) for violations he committed against her during their divorce.
3. Defendant C, a wily and criminal minded man, has his lawyers draft a motion to disqualify attorney B, saying he once spoke to him about private marital affairs in his marriage, and attorney B gave him advice to purchase the spyware that brought about this lawsuit. He says that he paid B a $1 for this advice.
4. The court buys this into this fraudulent ply, and A's attorney is kicked off the case. Ever since A's case has dragged both cases into stalls, as she has had to find and replace other lawyers, who seem to have been intimidated into doing nothing. We are again waiting as this last one again mysteriously disappeared.
5. For him to be kept off the case, his potential testimony must be both material and relevant to the lawsuit. Assuming X has standing to bring a motion to strike this fraudulent motion, as its aftershocks are hurting his own case, X is to argue that , even if that lie was true, attorney B's potential testimony is immaterial and irrelevant to the factors that brought about the lawsuit. SInce, the fraudulent lies that C brought about only point to the LEGAL purchase and use of the spyware. The lawsuit ONLY came about by the illegal USE of the spyware, which inly happened when he was under the control of his divorce attorney (another defendant in this case who filed a joint motion to disqualify). I know the judge is relying on the fact that C's state of mind is relevant when he bought and used the spyware, and is material to any potential damage awards. However, I am arguing that he is not nor has ever been accussed of telling him to use the spyware illegally, which is the ONLY reason the lawsuit stands here today. C could have used the spyware all he wanted, and it was legal, UNTIL he illegally used it.

Does that stand up to lawyerly scrutiny?
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Ely replied 1 year ago.
Hello friend and I hope you are doing well today. Thank you for requesting me.

You state: "Assuming X has standing to bring a motion to strike this fraudulent motion..."

1) By "this fraudulent motion," do you mean the motion to disqualify counsel, and
2) Has it not already been decided by the Court?
Customer: replied 1 year ago.

yes, that motion that disqualified counsel. It was decided by the judge already. However, as the trremors of that problem continue to plaque this case, I was told I can still motion to strike it, as a fraud can always be challenged. Unless im forgetting what I was told, and they meant i could file a rule 11 or some other sanction. Maybe a motion to strike is out of the question then?

Expert:  Ely replied 1 year ago.
Gotcha. Okay, well I have a little bad news here - apologies in advance.

I was told I can still motion to strike it

I am afraid that I have to disagree. You are not connected to their motion to disqualify, because this is not your attorney, but this is A's attorney. In other words, you have no standing to challenge the disqualification of another party's attorney. If it was your attorney that was disqualified, then you could indeed challenge it (and not via a Motion to Strike - meant to strike down a motion that is incorrect on form, but via a Motion for Reconsideration). However, because this is A's issue and not yours, you cannot challenge A's attorney's disqualification. I am sorry.

And no, no sanctions otherwise are possible (FRCP 11, etc). This matter is A's, only. They have to act on it, via a Motion for Reconsideration, and a timely one at that, too - 30 days or less.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 1 year ago.

ok, i want to ensure I have this right, because now i do recall that I cannot file a motion to strike. I had that confused. The other attorney told me i could challenge the fraud that is affecting my case. The fraud was that motion which the judge ruled upon, incorrectly. The fraud continues to distrub both our cases. The lawyer said, that because my case has been tied to her case, and my case is being affected by that disqualification, I have standing to have the fraud addressed, vis a vis a rule 11. this is what i was told. Please let me know if you disagree with that, so that I do not file this motion unnecessarily. Thank you.


 


 


 


If it is YOU who are being impacted by the fraudulent affidavit in the way that it is delaying the proceeding unnecessarily, then you can file the motion even now after 6 months. The other plaintiff can also join in on filing the rule 11 now, since fraud is always able to be raised in court, and seek sanctions.


 


A rule 11 is not the only thing you can file, but it is the most appropriate. You can also file a motion to strike the affidavit based on fraud, the result is pretty much the same and the affidavit gets removed and you can ask for sanctions.

Expert:  Ely replied 1 year ago.
Friend - apologies but I have to step away due to an emergency. I shall reply in under an hour...
Customer: replied 1 year ago.

oh wow, i hope everything is ok with your emergency.


 


there is no rush for this. God bless :)

Expert:  Ely replied 1 year ago.
Hello friend,

My apologies for the wait. All is resolved here, thank you for asking.

ok, i want to ensure I have this right, because now i do recall that I cannot file a motion to strike. I had that confused. The other attorney told me i could challenge the fraud that is affecting my case. The fraud was that motion which the judge ruled upon, incorrectly. The fraud continues to distrub both our cases. The lawyer said, that because my case has been tied to her case, and my case is being affected by that disqualification, I have standing to have the fraud addressed, vis a vis a rule 11. this is what i was told. Please let me know if you disagree with that, so that I do not file this motion unnecessarily. Thank you.

Yes, I respectfully XXXXX XXXXX this. This matter dealt with A's attorney. And honestly, it does not involve the facts of the case at all, but only her counsel. So this fraud is not touching the matter at all, and only has to do with A's representation. As such, only A can address this - you have no standing. You can always try - of course - but I predict the Court will deny the motion.

So honestly, regardless of whatever motion would be filed, it would have to be filed by A. This is my opinion.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Satisfied Customers: 87444
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 14 other Personal Injury Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.
Customer: replied 1 year ago.

thank you, ya saved me a ton of embarrassment...i think i told the other attorney the wrong set of facts, and thats why he said what he said.

Expert:  Ely replied 1 year ago.
No worries buddy; that is what I am here for!
Customer: replied 1 year ago.

hey, just wanted you to know you saved me again. The other lawyer had believed that the connected case was also mine. WHen he realized it was not, he immediately agreed with you. I sometimes do a bad job of explaining,so he was understandably confused. IM going to motion to get the cases separated though. thanks so much, it would have been embarrassing had I filed that!

Expert:  Ely replied 1 year ago.
No worries at all - I am glad that this worked out!

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