I was recently involved in a case in which I was retained to defend my client against an attempt to obtain a restraining order against him.  The party seeking the order (the "Petitioner") alleged that she was fearful and afraid of my client, who was "bothering" her because he "seemed to feel that [she was] in his debt."  In her moving papers, which she signed under "penalty of perjury ", she stated that my client had given her some money ($25,000.00) and a car as gifts and that she "was never particularly close with" my client. 

In response, my client provided evidence of emails the Petitioner had sent him wherein she had said, "I love you very much", "Love you with all my heart", "My heart is bursting at the thought of seeing you",  and the like.  He also produced emails he had received from Petitioner wherein she stated, "THANK-YOU for rescuing me by lending me the attorney's fees", requesting to "borrow one of the cars", and an email that she had sent to her attorney and forwarded to my client which stated that my client had "financially supported the children and I since February, he has lent me money for legal fees etc as well as providing me with a vehicle."

In the responsive papers, I advised the Court that the case was "frivolous and without merit" and that the Petitioner's attorney had a conflict of interest "because of his apparent knowledge of her perjury and the fact that he may be a witness to that fact."  I requested the following orders:  (1) that the Court deny Petitioner's request for a restraining order; (2) that Petitioner's attorney be relieved as her attorney of record; (3) that Petitioner and/or her attorney be ordered to reimburse my client for all of his attorneys fees and costs; (4) that the Court report Petitioner to the authorities for perjury; and (5) that the Court report Petitioner's attorney to the State Bar of California for having knowingly allowed Petitioner to perjure herself.  Since the crime of perjury can only be reported to the authorities by a judicial officer, I stated, "Unless and until Courts appropriately penalize clients and their attorneys of record for such misconduct, the judicial system will continue to be used inappropriately by unscrupulous individuals and their legal representatives."

The Court denied Petitioner's request for a restraining order and ordered that Petitioner pay my client 100% of his requested attorney's fees, in the sum of $5,000.00.  However, the Court denied my other requests. 

I then took it upon myself to report Petitioner's attorney to the State Bar of California, which after reviewing the evidence advised me that it would not discipline the attorney, stating, "Although you may be correct that his client lied in her declaration prepared by [her attorney] regarding the loan of funds and the car as well as the claim of threats by your client, we would have to prove that the attorney acted in bad faith or presented a claim not warranted under existing law.  Since communications between the attorney and his client are confidential, we will not be able to learn what representations by the client the attorney relied upon in presenting the client's claims."

Judges almost never refer a case to the District Attorney's office for a perjury prosecution.  "Persons who knowingly make such accusations [false allegations] are almost never subject to legal sanctions.  Casey Gwinn, a San Diego prosecutor and national authority on domestic violence, admits, 'If we prosecuted everybody for perjury that gets on the witness stand and changes their story, everybody would go to jail.'" 

Clearly, the system does nothing to discourage people from committing perjury.  I am of the opinion that unless and until Courts refer cases of perjury to the District Attorney's office for perjury prosecution and the District Attorney's office actually prosecutes such cases, "everyone that gets on the witness stand" will continue to commit perjury.  Since the judicial system is not known for its ability to always fetter out the truth, it might be a good idea if something were done to reduce the incidence of perjury. 

Furthermore, when sworn in as attorneys, we agree to faithfully discharge the duties of an attorney to the best of our knowledge and ability.  Among other things, the duties of an attorney include the following:   (1) "To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense";  (2) "To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law"; and (3) "Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest."

The system might also improve if the attorneys remembered the oath that they took and if the State Bar actually disciplined those attorneys who fail to "faithfully discharge the duties of an attorney and counselor at law to the best of [their] knowledge and ability."

By the way, that attorney is now representing the Petitioner in an appeal of the $5,000.00 attorney fee order.  I do not handle appeals and will therefore not be involved in that matter.  However, it is my understanding that most appellate attorneys charge approximately $700.00 per hour.  Moreover, the prevailing party on an appeal is not entitled to be reimbursed for their attorneys fees by the other party.  Does anybody really believe that we have the best legal system in the world?  If people are so apt to lie under oath, what makes us think that people bother telling the truth when not under oath?

If you have a child custody issue or questions relating to a domestic violence restraining order, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation. 

On May 16, 2010, in a news story entitled, "Many tips on LA's child abuse hotline unresolved", the Los Angeles Times reported on the fact that thousands of tips (more than 18,000) go uninvestigated within the time mandated by the State, even though the deadline for completing such investigations was recently increased from 30 to 60 days.  In response, Troist Ploehn, the Director of the Los Angeles County Department of Children and Family Services (DCFS) blamed the fact that the Department is short staffed and stated, "All of the things that equate with quality do take time." 

There is no doubt that DCFS is understaffed, considering California's $20 billion deficit.  Regardless of the funds available to DCSF, the most appropriate allocation of its funding should be the investigation of allegations of abuse and neglect in those situations in which the children are still at risk.  Unfortunately, this is obviously not where the Department opted to properly apply its resources.  Once the children have been removed from a dangerous environment by DCFS, the immediate risk to the children is alleviated.  Therefore, resources could be cut from those divisions within the Department handling situations involving children already removed from a dangerous situation.  The County of Los Angeles admits that DCFS has approximately 7,000 employees and an annual budget in excess of $1.5 billion.  According to the Los Angeles Times, only 596 of those employees are emergency response unit workers.  Please bear in mind that Los Angeles is just one of 3,141 counties in the United States and is certainly not unique in its troubles.

The government is in no position to increase the DCFS budget in order to solve their purported problem with being understaffed.  Moreover, while DCFS may be short staffed, it is false and misleading to imply that if fully staffed, the Department would produce quality results.  Even if DCFS had all the time in the world and had all of its purported staffing issues resolved, quality would not be a term used to describe its results. 

I recently wrote a Blog entitled "False Allegations and Domestic Violence."  In response, an individual who works with Child Protective Services commented that "many things seem to slip through the cracks… within the Department" and about the lack of criminal prosecution for acts committed against spouses and children.  This particular individual speculated that the problem could just be "plain laziness."  Regardless of the cause, this individual admitted that "lives and families (especially the children) seem to pay the price....  When children are involved with the state, they are the ones to suffer the most."

Family law attorneys are well aware that DCFS is the last place any family wants to find itself.  In fact, many family law attorneys have their clients retain private attorneys who specialize in handling DCFS matters to try and persuade the case managers to close a file before one is ever opened in an effort to keep matters out of DCFS.  This is not being done in an effort to somehow protect these individuals for wrongs that they might have committed.  Instead, the reason for doing such things is because the family law court cannot make rulings on matters with open files in DCFS. With all of the problems in the family law courts, seasoned attorneys still know that the families and children are far better served in the family law court than they would be by DCFS.   

Even in those cases in which DCFS performs thorough investigations, they still manage to get it wrong.  It is luck of the draw whether the investigator assigned to a given case has seniority and is familiar with the ins and outs of the system and the likely outcome with regard to a particular child.  The investigators are not known for properly evaluating situations and could very well worsen a situation by taking a child away from the protective parent and placing the child in the custody of the parent most dangerous to that child.  It is also possible that DCFS could take children away from both parents for no good reason and based upon an improper investigation.  According to the Los Angeles Times, "more than a dozen children had died of abuse or neglect in each of the two previous years after coming to the attention of the department."  Moreover, the Department focuses on family reunification, but without making certain that sufficient safeguards are in place to protect the children. 

We must remember that those employed by DCFS are civil servants and that it is very difficult to be terminated from a civil service job.  I mean no disrespect for those civil servants who take pride in their work.  However, incompetence, inattention to duties, and misconduct are not uncommon terms used to describe some civil servants.  Even if competent, some civil servants are known to work very short days in order to accommodate their private practices and while being paid as full time employees by the government.  Colleagues and supervisors cover for those individuals because many of them are doing the exact same thing.  After all, if you scratch my back, I will scratch your back.  While the American public might keep quiet and accept this type of conduct by certain civil servants, when "lives and families (especially the children) seem to pay the price", that price is just a bit too high for my comfort. 

If you have a child custody issue or questions relating to domestic violence restraining orders, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.