Can attorney ethically seek default judgment against defendant who fails to answer if he knows complaint fatally defective?

Homeowners association, three member Board. Two seated, tie for third. One director (A) sues HOA seeking provisional director. Other director (B) will file to intervene to oppose. Because Board majority isn't available to hire attorney, HOA will fail to respond. Intervention motion won't be heard for 6 months. Assume the following: (1) service was defective; (2) complaint cites inapplicable statute to seek provisional director; (3) plaintiff was legally required to offer Alternative Dispute Resolution prior to filing case, and did not. Also assume: plaintiff's attorney was informed in writing by Director B of 1, 2 & 3, and knows that 1, 2, & 3 are true. Question: can plaintiff's attorney still ethically seek a default judgment when he knows his complaint had those three fatal defects?

Nathan’s Answer

HOA seems like it could really benefit from representation to file a motion to quash on service, file a demurrer to attack inadequate legal citations or to file a motion to compel arbitration if necessary. Neither tied director wants to step down, and no runoff election has been instituted it seems, and it would be a shame to have HOA default with additional parties being piggybacked onto any default, even if default is subject to begin with.

How do I seal a restraining order record?

I have a restraining order and I want to know what I need to do in order to remove a restraining order from my record? I was never asked for my date of birth or social security. The court just has my name and address. It was not a criminal order. So what can I do to have this removed? Its a six month order.

Nathan’s Answer

Are you trying to argue that the restraining order is defective because it misses some information? That may not be feasible. Has the time for the restraining order already run? You don't mention if the 6 months is how long the order is/was, or if that is how much time remains on it.

What is the difference between a living will and a durable power of attorney for health care decisions?

I am working on a revocable living trust estate plan in the state of California, and I would like to know if it is necessary to have a living will and durable power of attorney for health care decisions included in the estate plan. It seems like a lot of the information I place in the living will can be referenced to in the durable power of attorney for health care decisions. What is the primary importance of a durable power of attorney for healthcare decisions in addition to the living will?

Nathan’s Answer

A durable power of attorney for health care allows someone you trust to direct your health care wishes should you be incapacitated. A living will sets out the medical treatment you are willing to accept or decline should you become incapacitated. California combines both of these into an advance health care directive. Physician Orders for Life-Sustaining Treatment (POLST) supplements advance health care directives. POLST deals with current treatment needs while "advance" health care directives deal with future desires in regards to treatment.

Can a senior on long term Medi-Cal receive her pension and keep it?

My 70 aunt is in a nursing home and is on medi-cal (we live in California)

she suffered a traumatic brain injury at 57yrs. She no can get her pension but being on long term medi-cal what will happen? We did nothing 6 yrs ago when she should have started getting the pension now she will get a big payment and she cannot have more than $2k in her account. She has never been married or had children. My mother is her conservator. We don't want to be liable for any tax money or disqualify her from long term medi-cal. Any advice would be helpful Thank you

Nathan’s Answer

I am so sorry to hear about your aunt. Mild to moderate to severe traumatic brain injury is caused often by falls that rob an aging person of mobility and independence. Medi-Cal is ideal because it covers nursing home for longer than Medicare. However you've identified an interesting problem in that if she receives backpay or unpaid pension, this can affect her Medi-Cal eligibility. Since your mother is her court-appointed conservator, your mother has what are known as fiduciary duties (the highest in the land) to properly account for your aunt's finances and possibly health concerns as well. It behooves your mom to contact an elder law or health care lawyer immediately so the different outcomes can be discussed.

Is it legal malpractice if your attorney only gets a small settlement offer and the case is awarded more without that attorney?

I had an auto accident case in which I was given a very small offer. The attorney pressed me to accept $2500 offered and when I said no, he moved to be relieved as counsel. I took the case on myself and found that not even the basic form ROGs had been sent out and I was able to work the insurance company up to $10,000. Luckily, the majority of my medical bills had been covered by insurance claims.

In any case, I wasn't really damaged when I did better without him, but he certainly should have been able to do far better than he did. Would it be worth suing or is this just bar complaint material?

Nathan’s Answer

Because you did not accept the smaller settlement, there are no damages. Also, earlier smaller settlements can be valued more highly than later bigger settlements due to savings in legal fees to get the higher settlement and because the earlier smaller settlement can have a higher "present value" than a later higher amount.

Threatening emails from disbarred attorney I filed complaint against

2 years ago I filed a complaint against a CA attorney I hired to handled a civil matter. Shortly thereafter I began receiving emails from a LinkedIn account associated with the attorney inviting me to join his professional network. According to LinkedIn, he works for a company in Texas that has an office 15 miles from parent's house and 5 miles from my grandmother's house. According to a Google+ account associated with him he lives in a community a few miles from the company office. The emails arrive within a month or so after I contact the CA Bar Association and/or they take action related to my complaint. A letter sent to the CA Bar Association informing them of this & expressing my concerns has gone unanswered. What are my options?

Nathan’s Answer

LinkedIn has a "block" feature under "Privacy and Settings." I recommend you "block" this attorney so that you no longer receive any emails or views from their account.

Hired a "reliable" attorney. Signed retainer. He quit & took off with my money. Oppositions due less than 5 days. No response.

Prior attorney suspended by state bar.  Hired new attorney w/o bar complaints to represent my 5 year long case--civil trial May 8. Educated him for 3 weeks about case. Provided all files. He reviewed complaint & defendant's MSJ. Said my case is strong, defendant's case weak. Terms $5,000 down/20% contingency. Signed retainer--have copy. Paid $5k. Signed sub of atty form. Attorney said he'll file oppositions to defendant's motions before they're due shortly. Met 3 hours to discuss trial prep. After 3 days, attorney sent email he won't represent me, did not file sub of attorney with court, but will return my money. He disappeared for over a week. No return of money or files. Staff say he's acting weird. Opp due in less than 5 days. HELP! I can lose everything. What do I do?

Nathan’s Answer

You'd ideally have another attorney step in and request a continuance. You are entitled your monies back if your current attorney really has just bailed. However, if there has been a true emergency, the court might allow the matter to move forward if your current attorney can articulate what has been going on. You should probably have another attorney review this attorney's behavior and inquire what is going on and if an attorney can both handle this legal matter for you as well as control the transition of the file over from your former counsel while getting your money back, all the better.

Are law firms required to alert client if attorney working on case gets fired and later suspend by bar?

Attorney working on my case was fired, firm told me they just let him go. Later I found out (online) that he was actually suspended. Was my firm required to alert me of this because if they had I probably would have hired a different firm.

Nathan’s Answer

If the attorney was suspended prior to you retaining the firm, that could be a huge problem. If he was suspended after you retained the firm, it is unlikely to be too big an issue since you are hiring the firm, not the attorney. It of course depends on whether there are other attorneys at the firm.

After retaining my attorney, he reveals he has throat cancer. can I get my retainer back? I feel like he is"out of it"

He told me that it would work in my favor, the fact he has throat cancer, by being able to delay my case. I have been calling him with no response, then two days before my next court date, he asks for letters of recommendation, official transcripts and resume. That is not enough time to get that stuff together! Would I be able to get any of my retainer back? I feel like he is not doing a good job.

Nathan’s Answer

You are always free to terminate your lawyer, as long as they get paid for what work they've done. If the $7,500 is exhausted, you are out of luck to get money back. On the other hand, if the lawyer is undergoing cancer, you may want to arrange for a smooth transition of your case out of the lawyer's office unless you receive assurances that your case will be handled as it should be.

I fired my attorney and later found out the the lawyer..see details...Should I report them to state bar or refuse to pay them?

I fired my attorney and later found out that the lawyer that was working on my case (whom was fired from the firm) was later suspended. The firm never told me that he got suspended only that he was no longer working there. Also come to find out in my attorneys words, "with the loss of our litigation attorney, the only way to satisfy our FEL was to bring in co-counsel." This point was also never brought to my attention. Fast forward three years later I dropped the lawsuit and I fired my attornys because they were not making any progress on the case. They sent me a bill which after complaining they reduced 40%. Should I pay them or should I refuse and report them to the bar?

Nathan’s Answer

The State Bar has a Fee Arbitration Program for fee disputes. The fee agreement likely controls. It may have a provision that the law office is ultimately responsible regardless of what attorney works the file. It may not. You may want to consult with an attorney who can look over your fee agreement and the specifics of your case. Such attorney should also review for potential malpractice and whether it can be proven that had another lawyer acted competently, the result would have been different - in other words, have you suffered any damages as of now?