Is this slander or unethical behavior

I'm in California, and during an issue on child custody the opposing attorney told the court that I was under investigation by the local law enforcement for statutory rape of my step-daughter. I was not (and never have been) under investigation for statutory rape, and I do not have a step-daughter (at one point there was a girl whom my wife and I had guardianship over, so this isn't truly the issue...but step-daughter makes it sound so much worse than "ward").

It can be proven that the attorney knew that this was not the charge that I was being investigated for and the investigating officer has stated that he is willing to testify that he informed the opposing counsel of the charges being investigated. The attorney's statement led me to lose custody of my daughter for seven months.

So, we have what I believe to be slander, a violation of Rule 5-200 (b) which states that “…a member (s)hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;” and a harm that comes from it. Is this something that should be reported to the California Bar Association (with transcripts, of course). If the Bar finds that he did violate Rule 5-200(b), what is my recourse after that?

Thanks for your time. This attorney seems to be the "win at all costs" type which gives the rest a bad name.

What charge were you under investigation for?

Slanderous statements made in the course of and in reference to a judicial proceeding are not actionable. They are covered by an absolute privilege and immune from all tort liability.

However, you can report the attorney to the State Bar, if he has made a knowingly false statement in court. They will investigate the complaint.

My soon to be ex said that 6 years prior I had touched the girls breast once, when she was 16. A far cry from statutory rape (although I'm not diminishing any sexual battery...it is ALL wrong).

I'm not a lawyer and so I don't completly understand your statement about "in the course of..." Does that mean that he say say what a court is charging and that is fine? The charge he quoted (or mis-quoted) was never filed against me, never contemplated being filed against me by the Police, and was never an allegation made by the girl. The first any mention of statutory rape was by him in Court. Never in his pleadings or point and authorities or anything. When he was losing his arguement to have my daughter stripped from me, he then hit with this from left field as a "Hail Mary" attempt to get custodial rights revoked, which worked.

quincy said:

Slanderous statements made in the course of and in reference to a judicial proceeding are not actionable. They are covered by an absolute privilege and immune from all tort liability.

Click to expand...

Thanks for the reply. I'm going to follow up with a complaint to the Bar and see where that leads to. If they do find that he acted inappropriately, could that be used in a lawsuit against him? While I'm not litegeous, his actions deprived me of my daughter for 7 months, and when we were finally reunited it took a while before she would even acknowledge me, because she had been told repeatedly that I was a pedophile, and they used the lawyers words in court to "prove" it (if it wasn't true, he wouldn't have been allowed to say it, sort of logic).

Although lies should not be told in court, in reality they are told all the time, especially in divorce and custody cases.

A person who lies in court cannot be sued for defamation for any false statements made during a court hearing or in any of the court papers filed. This absolute immunity from prosecution covers all statements made by the attorneys, the parties, the judge, the witnesses, any advocates, etc. that are involved in the case. This means that a person can tell the most horrible and defamatory of lies in court and be protected from any civil action being filed against him.

Someone who lies in court could, however, be charged with perjury for these lies. Perjury is a criminal act and is the deliberate making of materially false or misleading statements while under oath. Although perjured testimony is often given, perjury is rarely charged. Significant financial resources are needed to prosecute someone for perjury and resources are limited. It is left to the state to decide whether a charge of perjury will be pursued.

In addition, it is possible for a judge to find a person in contempt of court for lying under oath, when the lies serve to interfere with the administration of justice, but it is rare for a judge to do so. Contempt would be punished by fines or, occasionally, jail time.

Lies told in court by one party can be challenged in court by the other party. It was in court, when the attorney informed the judge falsely of you being investigated for statutory rape that you or your attorney should have challenged the information presented as false and presented evidence to the contrary (ie. testimony from the investigating officer).

It is possible, and you would need to speak with a California lawyer on this, to not only report the opposing attorney to the California Bar for an investigation into Rules and Ethics violations, but also to file a motion and an independent action for relief from any order on the basis of "fraud upon the court." Generally this would need to be done within 6 months of the time the original order was issued (a "reasonable" time).

You would have to show by clear and convincing evidence that there was a plan to improperly influence the court with perjured testimony.

Also, it may be possible to have the attorney prosecuted for subornation of perjury for aiding and abetting a client to commit perjury in a divorce/custody matter.

Finally, if the false accusations of statutory rape are being repeated outside the court (ie. your ex-wife is telling others you either raped or are being investigated for raping a child), then a defamation action CAN be pursued. These statements would not be protected by any immunity. False statements of statutory rape are seen in most states as reputationally injurious "on their face" or "per se" defamation, and injury to the reputation is presumed. Damages can be awarded on this presumed injury. California has a one year statute of limitations starting from the date of first publication of a defamatory statement, within which you must file a defamation action.

Consult with a California attorney to go over all options that may be available to you.

Good luck.

Whatever the attorney said in court, regardless of how false it was, does not rise to the level of 'Perjury'. The attorney is not testifying under oath, and such comments are not admissable evidence.

Nor would such a false statement amount to subornation of perjury, if the attorney simply made an off the cuff false statement on his own without putting his client in a position of stating this herself under oath.

Ultimately, any issues with false statements made in court should have been addressed at that time while in court.

If you did not object or deny or otherwise controvert such remarks at that time, then such complaints are essentially waived.

At this point, I would not have any expectation that the CA Bar will take any action at all against this attorney on this matter. Not saying it shouldn't, just suggesting that as a practical matter it won't.

Furthermore, you must be able to argue that "if not for such comments, the judge would have ruled differently". And in these types of family law cases, beyond your own personal opinion, that if often impossible to prove. The exception being that if you had requested written Findings from the judge on the reasons for his rulings against you, and his findings suggested this was a major factor in his rulings. Without this, you have no basis for establishing that such remarks were harmful to your case.

Tex, welcome to the forum. You have already provided excellent advice to some of the posters here.

In reading your reply here, I gather I was not especially clear in my own post? I never meant to imply that the opposing attorney could be charged with perjury for the statements he made, nor that could he be charged with subornation of perjury without testimony having been given by his client.

My post was outlining how lies told in court can be handled. I defined perjury and used the words "under oath" and "testimony" when speaking of perjury, perhaps wrongly assuming a knowledge of attorneys that isn't there. I apologize to 4N6 Pix for any wrong impression left by what I said.

I agree with Tex that there may not be much you can do about the attorney's court statements seven months after the fact, other than filing a complaint with the California Bar (which I recommend you do), however I still believe it would be wise for you to see an attorney in your area to review the transcripts from the hearing and go over all of the facts. If you have suffered demonstrable harm as a result of the court order and from any defamatory comments made about you outside of court, an attorney can outline for you what legal options may be available.

Good luck.