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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102601
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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We are filing a motion for sanctions against opposing counsel

Resolved Question:

We are filing a motion for sanctions against opposing counsel for misconduct (we are Pro-Se). Can someone point me toward a past example of a similar filing against an attorney? What can the judge award (not monetary, we'd really just like him kicked of the case and have to stand before the bar and justify his deceit, lies, games, etc)? Can we file it with the court when it's written (we are mid-trial - I know this may seem trite but we have absolute evidence he's stood before the judge, lied, written lies, and threatened our witnesses - directly affecting two young victims in this case)? In Utah these are all direct violation of his code of conduct and rules governing court.
Submitted: 5 years ago.
Category: Legal
Expert:  Ely replied 5 years ago.
Hello and thank you for requesting me.

We discussed this last time. I explained that filing a motion for sanctions is the last thing you want to do. You are much better off filing a bar misconduct matter:

While what the attorney did was unethical, it is unlikely that the Court is going to entertain this.

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Customer: replied 5 years ago.
Yes I wasn't trying to ask the same question twice, I actually opened it to all experts to see the different opinions.

My specific question however is if there are any other sanctions that have been filed for misconduct (any State), where we can actually look at the original motion. I'm much better at putting motions together if I have multiple examples and different approaches to use as a bases to come up with my own.

I understand the risks with doing this and the small chance that it will even be heard, however that chance is worth it to us - and for lack of a better explanation, we feel it is the right thing to do. Because of that I am trying to understand specifically the relief that can (and is expected will) be asked for in these types of cases. I can present the arguments, the facts, and site the laws that have been broken based off of those facts (backed with evidence). How to appropriately draft the question for relief both at the beginning of the motion and the end - is where I need suggestions. We actually had to write a counter suit against a motion for summary judgement against us in federal court last year (we have issues :), and we won Pro-Se. We also filed for two Protective Orders against a mother on her children, and won those Pro-Se as well. That doesn't give me confidence we will prevail again, however it has given me a bases for the laws, what the court demands, and what type of arguments we can appropriately make. The specifics to the individual motion are what take most of my time.

The relief we are hoping for is him to be removed from the case, however rather than ask it like that - we'd like to put in the wording the specific law that would allow the judge to order that relief, so that we immediately draw her interest in the motion by not asking for a rarely granted type of relief, but rather giving her to begin with the laws that would govern her to order that relief.

We understand what is expected the court will say, however we believe because the truth is on our side - it is worth the risk to stand for it, even if it is highly unusual.

I much appreciate your honesty and your answers, any suggestion would be appreciated :)
Expert:  Ely replied 5 years ago.

I am afraid that I do not have examples of past motions for sanctions of other related such matters. Nor am I sure if an attorney may be removed from the case for violating Utah's Judicial Council Rules of Judicial Administration Rule 4-903(3)(b).

I admit that my past opinion of sanctions against the attorney via motion may have been somewhat too specific. A Court may admonish the attorney if you mention this as part of something else, but frankly speaking, I do not believe that filing a contempt (or sanctions, etc.) on this alone is enough to have this attorney be held in contempt, and definitely not enough to be thrown off the case.

One in your situation is free to try, but it may be a futile exercise.

In addition, frankly speaking, there is no specific statutory law or case precedent that has the Court disqualifying Counsel. Criminal contempt requires that the contempt order be issued to safeguard the integrity of the court. "A contempt order is criminal if its purpose is to vindicate the court's authority, as by punishing an individual for disobeying an order." Von Hake, 759 P.2d at 1168. Thus, a criminal contempt conviction requires more than an attorney's violation of an ethical duty. People v. Wolf, 514 NE 2d 1218 - Ill: Appellate Court, 3rd Dist. 1987.

Here, the attorney did not violate an order. They violated only an ethical duty set out in Rule 4-903(3)(b). I know you do not wish to hear it, but it is unlikely that the Court will do anything over this other than perhaps comment that you should take it to the Bar and go on with the matter at hand.
Customer: replied 5 years ago.
Without getting in to the details, I think I've presented the wrong picture by not presenting a clear picture. He actually has broken court order. He has also written up orders not ordered by the court. He has done much more than just lie, his lies have been to cover his own actions. One of our strongest witnesses has had to hire an attorney to bring to court to protect her because he has threatened her outside of court. I can't imagine this is simply breaking an ethical duty. This witnessed testified to that on stand a week ago, her attorney testified to it, and the opposing council made absolutely no attempt to deny it. Our goal now that the court is at least aware of that one instance, is to now go back over the past year and show each instance where similar actions have taken place outside of court - and back them up with evidence. By so doing we must have a good chance of bringing some alarm to the judge. It is that alarm that we want if nothing else, because we believe he is greatly disrespecting the court by defying her orders outside of court, threatening witnesses, making false accusations, repeating here say, and claiming to have evidence he doesn't have. He turned over nothing during 13 months of discovery. Nothing. Not a thing. His client plead the fifth on almost every inter. question she was asked. He continues to stand in court and make false accusation and then tell the judge he will bring in evidence later. If he has evidence (he doesn't because the accusations aren't even possible), he has turned nothing in and it has been 13 months now. There has to be a way to draft a motion to the court siting an actual broken law that will draw her into reading the motion, and then prove the law (s) broken. This is not just a lie, his lies cover his actions - his actions have directly damaged two victims which damage their therapist and the Guardian Ad Litem are already attesting to. Possibly the direct damage of the broken laws don't matter, but the broken laws should.
Expert:  Ely replied 5 years ago.

With all due respect, while some of this may be unethical, the proper action would be to file a bar complaint.

I am not defending his actions, but I am merely telling you how the Court is going to see and and what it would say... which is "take it to the bar."

I promise you.
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