Any lawyers? I have a question regarding ex parte communications

[IkeWarnedUs]

I am my mother's guardian and having trouble with my lawyer. I wrote a letter to the judge, who scolded me for passing an ex parte communication to her. Actually, scolded is mild. She handed me my ass today.

Would my letter be considered "ex parte"? Since my lawyer and I are supposedly on the same side, how could the communication be considered to benefit one side of the proceeding?

A little background - I don't have the money for a retainer for a new lawyer and was asking the judge what I should do. This judge was just assigned to this file a couple of months ago, so I started the letter talking about how I came to hire this lawyer, but other than that, I didn't discuss the guardianship, just the problems I have had with this lawyer and why I am concerned.

One other note - this is a brand new judge, not just new to this file. She just became a judge and was a lawyer until a few months ago. She was really pissed that I contacted her about problems with my lawyer and said once she realized it was an ex parte communication she stopped reading my letter. She wouldn't let me talk in court today and I was double teamed into agreeing to work with this lawyer without addressing the problems I've had.

I would appreciate any insight.

[DemocratSinceBirth]

1. I'm Not An Attorney

but I know some and I'll give it a stab

I know you have a lawyer.

Take him out of the equation.

If I'm suing you I can't talk to the judge without you there and you can't talk to the judge without me there.

A one party communication is an ex-parte communication. You can see how unfair it is.

[Pale_Rider]

8. Also judges usually have to recuse themselves ...

... from hearing the case if ex parte communication had occurred. In this case since the judge recognized that the letter consituted ex parte communication before finishing (keyword) the letter, the judge could reasonably not have to recuse herself from the case.

Varieties of judical misconduct in California ...
http://cjp.ca.gov/2001privdisc.htm

BTW: I too, am not a lawyer ...

[rwheeler31]

2. it is hard to respond

you are not making yourself clear at all

[DemocratSinceBirth]

3. It's Clear

why the judge doesn't want to be party to an ex parte discussion. She'll get disbarred.

[IkeWarnedUs]

10. more details

I was appointed my mother's limited guardian in 1998. A friend of mine took the case pro bono. He is not a probate attorney, but took the case because I didn't have the money for a retainer. We bumped along for the last 5 years, but now my mom is much worse and since she doesn't know where she is living anymore (or even who I am) I want to move her and her caregiver from her house to an apartment and sell the house. I have been paying out about $800 to $900 a month for the bills my mom hasn't been able to pay to keep her in her house until now. I am beyond broke and started working on this with the old lawyer in January and hired this new one in April.

The problem is it is now July 28 and the only reason we were in court today is I secured the date myself when I left the letter for the judge. I gave a copy to my lawyer and to the judge who had this case until May, when it was assigned to this brand new judge.

The problems I am having with this new lawyer include not returning my phone calls, not having time to work on the petition to sell the house, never getting any copies of anything so far, including things I specifically asked for and need like the Letters of Office from June 10 and a bill for my increased bond that was issued June 16. I got those Friday (7/25) when she told me she was going to withdraw from the case because I wrote the letter. My mom's house needs some serious repairs and I don't believe it is safe for her and her caregiver to live there without the repairs. And there is no money to make the repairs. I can move her to an apartment in a building a friend of mine owns and pay for it when the house is sold. In the mean time I am in bankruptcy from just trying to keep the utilities on and food in the fridge.

I know the ex parte question is just one aspect of this whole problem, but I am trying to get a handle on where the judge is coming from. I didn't see anything improper with communicating with the judge. I handed the old judge the letter in person and told her what it was about (the new judge was on vacation when I went there). She told me she couldn't rule on my case anymore, but appreciated that I wanted to keep her informed. She didn't give me any indication that it was improper.

The more I think about it, the more I think the new judge related to the letter from the point of view of a lawyer. She actually threatened me that if I hired a new lawyer, she would not approve fees for time spent in getting the new lawyer "up to speed" and that it would come out of my pocket. She said it would also delay the process and that I needed to work out my "personality conflicts" with my lawyer.

btw, the lawyer I complained about submitted her fee petition today. There are a few items I would normally protest and some of the narative is not only insulting, it is wrong. For example, she is charging for a return court appearance because she forgot to send notice to my brothers and in the line about a phone call with one brother, she claims his question was about concern about my handling of our mother's funds. That wasn't the question at all. I am not sure what would happen if I were to dispute the charges. If today is any indication, it wouldn't go well.

[Eloriel]

4. I'm not a lawyer either

However, in general, the problems you're having with your attorney are not the judge's business. She not only doesn't NEED to know, it's inappropriate for her to know. And, obviously, inappropriate for you to have brought the matter to her. And yes, it's probably ex parte.

You didn't know. Now you do.

Eloriel

[seventhson]

5. Call your state bar association and greivance committee

every state has them. Some grievance procedures are found online in State judicial departmenbt websites.

They have different names so you may have to ask around a bit. You can call most state court clerks for referrals to the bar committee.

The judge, though, is right.

She cannot accept ex parte (private - off the record- literally "outside of the parties" ) communications.

You COULD file a pro se appearance if you are a party - ask the clerk in whatever court you are in - and have the right to argue your situation in court if you have STANDING (status) as a party.

And get to a law library (most high courts and law schools have them) and research whatever your issue is - the applicable laws, rules, regulations and case law -- so you kind of know what the law is on whatever your case is. Ask the librarian for pointers (and if you have any legal forms they SHOULD say what statutes are involved. Read them and read the cases summarized in the state statute books under each law - again - ask the law librarian)

[sfecap]

6. Generally, if you have an attorney of record...

..all communications must go through your attorney.

I'm not an attorney, but I have a bit of experience with this stuff...

[JackSwift]

7. Depends on the laws of your jurisdiction

A lawyer and/or a judge may not participate in communications without proper notification to the opposing party.

However, the ethical canons do not apply to you as you are not a lawyer or a judge. There may be a state code against it. But if this happened in California, you should report the judge to the council on judicial performance, as she should not have done more than admonished you (assuming your letter wasn't threatening, which can be a felony). Talk to your lawyer about it.

Oh, I am a lawyer.

[LizW]

9. I'm sorry that happened to you

I know it adds to the stress of having to go to court.

My experience is that the less experienced the judge, the bigger asshole he/she is. My two worst experiences were with a part-time municipal court judge who absolutely went nuts on my client, and with a newly elected circuit court judge who felt he had to prove how tough he was when he first went on the bench.

The best, most calm, reasonable judge I ever went before was a Federal Judge who now sits on the 11th Circuit Court of Appeals. Although I was a brand new lawyer, and the case was horrible (I had a terrible liar for a client), he was as nice to me as could be.

As for ex parte communications, they are aggravating to judges, I'm sure. Unethical lawyers, who should know better, do it all the time. However, it is very unprofessional, in my opinion, for a judge to treat a litigant or a lawyer badly in open court. Unfortunately, it happens a lot, and you are pretty powerless to do much about it, since she will be ruling on your motions and perhaps even ultimately deciding the case.

My advice is take the raking over the coals as meekly as you can, and try not to do anything to damage the ultimate outcome of you case. I know that's frustrating advice, but she sounds like a nut, and you have to think first about what you hope to ultimately acheive.

[IkeWarnedUs]

11. That's pretty much what I decided to do

First the judge refused to let me speak in court today (twice told me to be quiet when I tried to explain what my concerns were about my mom's house and the delays), threatened me that she guaranteed that a change of lawyers would result in "major delays" and that she wouldn't approve fees and told me to work out our "personality problems" (which were not the problem - in fact, the lawyer is very likable, just not doing the job).

Then she sent the lawyer and the Guardian Ad Litem and I into the hall. The GAL said if I couldn't work things out with this lawyer she would recommend that the judge assign a lawyer, but then warned that the lawyer would be more expensive and would be hostile to me. When I said I would try to borrow money for a retainer to hire my own replacement lawyer, they both jumped all over me that the whole thing would be tied up and take much longer if I did, and that I would have to pay for the new lawyer because the judge wouldn't approve legal fees. I know that isn't supposed to be true, since I should be able to hire who I want, but given the judges comments, I realized I was outgunned.

So, I have decided to go along. The house is not a safe place to live. Actually, the real dangers will come with winter (broken window frames, rotted chimney, very old undependable furnace, plumbing problems), but in the mean time it is infested with snakes in the basement and now the caregiver has found snakes in the main part of the house (including her bedroom) and I cannot leave them there. Granted, they are just gardener snakes, but they are still snakes!!! So I will suck it up and at least now the attorney will probably be on her best behavior and not continue to blow this off.