is this ethical?

[jerry Lenihan]

What is the name of your state? Massachusetts

My friend had gotten herself in a situation. She was abused by her boyfriend and has a restraining order against him. The boyfriend said that she fell out of bed under oath. She is getting a letter from a councilor that they both saw saying that he hit her and that a permanent restraining order be place on him. She bought a house and has him on the deed. His lawyer is saying that they will sign over the deed if she drops the restraining order. Can the lawyer say that? Also if a permanent restraining order is made and the DA is notified does this nullify his portion of the deed?

Any advice is helpful

 

[HomeGuru]

What is the name of your state? Massachusetts

My friend had gotten herself in a situation. She was abused by her boyfriend and has a restraining order against him. The boyfriend said that she fell out of bed under oath. She is getting a letter from a councilor that they both saw saying that he hit her and that a permanent restraining order be place on him. She bought a house and has him on the deed. His lawyer is saying that they will sign over the deed if she drops the restraining order. Can the lawyer say that?

**A: the lawyer can say anything.
*******

Also if a permanent restraining order is made and the DA is notified does this nullify his portion of the deed?

Any advice is helpful

**A: no. A RO has nothing to do with a property deed. You are mixing civil action with criminal action.

 

[reggi]

Jerry,
An attorney can say anything that they want, however, it would be up to the judge to decide. I should know, my ex does the same thing to me. (that is another forum in itself). Do not have your friend pull the restraining order. His attorney seems to be playing on the fact that she may weaken under this. Have her assemble all the information and documentation including the medical and police report and take it in front of the judge. Don't ever sign anything or agree to anything like this without an attorney. Believe me she will get taken! Speaking from experience.

 

[hexeliebe]

You CANNOT threaten criminal action or propose to drop criminal actions in exchange for consideration.

Justice, did you actually clerk for anyone or was it just a typist in the steno pool?

Where in the hell do you get "threaten criminal action" from what the poster asked?

The original quote:

His lawyer is saying that they will sign over the deed if she drops the restraining order

Now where in that statement is the attorney threatening legal action?

And yes, poster, this is perfectly legal. It's called negotiation. One sure way to know if it's ethical and/or legal is to call the bar association in your state and ask.

As for justice, I think he's sniffed too much whiteout.

 

[hexeliebe]

Jerry;

Now that the dust has settled let's look at your post issue by issue.

She is getting a letter from a councilor that they both saw saying that he hit her and that a permanent restraining order be place on him

The first problem you're going to have is the confidentiality issue between the boyfriend and therapist. Without Both parties to the therapy giving permission to release information, all the therapist can testify to is what the friend said.

Also, a therapist does not have any legal standing to ask ...'that a permanent restraining order be placed on him". as your statement above indicates. All the therapist can do is testify to what the friend said.

She bought a house and has him on the deed. His lawyer is saying that they will sign over the deed if she drops the restraining order. Can the lawyer say that?

Yes, the lawyer can say that. In Attorney General Opinion 91-07 states ..."it is not unethical per se to threaten criminal prosecution, as long as the allegation does not rise to the level of extortion." or further "However, the ABA Opinion notes that a lawyer cannot violate the laws of the state where admitted with such a threat, which means that if the threat constitutes extortion an attorney may not make the threat."

Further;

"As a practical matter, lawyers are discouraged from threatening criminal prosecution to gain an advantage in a civil case because such conduct may still be found to be "conduct prejudicial to the administration of justice" in violation of ER 8.4(d)."

Now, in your situation, there is no criminal or civil case therefore, there is no conduct that could be prejudical to the administration of justice.

There is also no extortion issue since you are receiving consideration for the requested action.

Also if a permanent restraining order is made and the DA is notified does this nullify his portion of the deed?

This issue has already been addressed by others. The deed cannot be nullified except by another deed legally exercised and/or court order.

If all she wants is to get his name off the deed then by all means have your friend sit down with her attorney and draft an agreement. I'm not advocating dropping the restraining order but a competent attorney can draft the agreement so that there is no longer contact between the two parties.