Plaintiff attorney filed response to court without client consent

[Gregory22]

Jurisdiction

Pennsylvania

First forum questions posted here, thanks in advance your comments.

My attorney avoided my calls for 2 days before our response to the defense (motion to dismiss) was due. i was concerned and then it turned out worse than i expected.

The attorney intentionally submitted the response without informing me of the edits or changes to the draft. ( he had just finished a 14 day motion to extend), worse he submitted only 1 of my 10 exhibits (all public legislative testimony) , again with no opportunity to discuss.

The response was filed without my consent and knowingly that i objected to dismissal of one defendant in official capacity and also the response to the court stated 'no objection to the dismissal of the officer's official capacity claim'... ( officer is a department chair of XYZ /not a municipality) and responsible for implementing rules for other state actors)

The claim is both equity and injunctive, was filed against defendants in the state superior court, of which the defense motioned to move to the federal jurisdiction.
I understand that claims against official capacity in a 1983 action for damages are generally protected by 11Amendment, however i cited multiple circuit opinions that black letter indicate the state waives immunity when voluntarily invoking the federal jurisdiction.

The claim was both official and personal capacity claims of 1st Amendment/ 14th Amendment violations under section 1983.

Question: what are my options to objecting to my own attorney's filing of the response without my consent ? As my representative to the court, he has refused to comply with my instructions that he amend or submit a supplement to the response. What other options are available to modify or stay the response as this is a critical aspect of the pleadings ?

I really dont want to be a Pro-SE, it's not my preference. Are there other ways to to address the court?

What are reasonable timelines for me to alert the court of a due process violation ?

 

[Redemptionman]

Suing people or entities who working in their official capacities is probably not the smartest move ever tried to be establish. Hell yes they want it in federal court since the damages will be a lot less and burden a lot more. PRO SE gives you no chance and your lawyer obviously didn't think you had a case against the dismissed defendants. If you are trying to make a statement that is one thing but maybe you should have weighed the various options before you filed off your lawsuit. I do not know if you are carrying the expenses which sounds like you are but these cases for most practical purposes serve as nothing more than to prove a point or shine a spotlight.

Good luck with it.

 

[army judge]

The attorney intentionally submitted the response without informing me of the edits or changes to the draft. ( he had just finished a 14 day motion to extend), worse he submitted only 1 of my 10 exhibits (all public legislative testimony) , again with no opportunity to discuss.

Did you execute a written, signed retainer agreement?

I suggest you read it.

Once you've read it, read it again.

If you possess such a document, most of your concerns are addressed by the retainer.

You don't get to determine the quality of your attorney's work product, anymore than you can direct and control your heart surgeon's technique, or determine what medication, strength, dosage, and frequency of use your primary care physician prescribes!!!

 

[Gregory22]

I appreciate the words of caution and can generally agree with what you are saying.

The subject matter is about my son's Individual Educational Plan (IEP) for school and
while the injunction is one of the priorities, the my attorney appears to be dancing lockstep with the defense in claim/ affirmative defenses/ and lack of challenge in the response. Your comment to this being a spotlight is right on, i see it too.

AJ comment about reading the retaining agreement is also accurate.

Can you speak to my question about the attorney selectively not including my exhibits or filing a response without consent ?
is this a due process violation ?

 

[adjusterjack]

is this a due process violation ?

No.

You are not an attorney, you have no clue as to how lawsuits work. Oh, you probably looked up a bunch of stuff on the internet and know just enough to be dangerous.

If you can't have a candid conversation with your attorney about how and why he did what he did, then fire him and get another. Though I don't think anything different will ensue and you'll end up paying two attorneys for essentially the same thing.

No surprise that your attorney did what he did. He doesn't want to be micro-managed by a client who did not spend hundreds of thousands of dollars and 3 years of his life on law school, plus whatever years of experience he has accumulated in his chosen field.

 

[zddoodah]

My attorney avoided my calls for 2 days before our response to the defense (motion to dismiss) was due.

Just to clarify: a motion to dismiss, in which the well-pleaded facts in the complaint were accepted as true and one or more defendants asked the court to dismiss on the ground that the complaint failed to state a claim for which relief could be granted. Right?

he submitted only 1 of my 10 exhibits (all public legislative testimony)

Normally, in deciding a motion to dismiss, the court may not consider evidence outside the four corners of the complaint. On what basis do you think it was proper for the court to consider this evidence?

The claim is both equity and injunctive, was filed against defendants in the state superior court, of which the defense motioned to move to the federal jurisdiction.

One does not "motion" ("move" is the correct term) to "move [a case] to the federal jurisdiction." If federal jurisdiction exists, then the defendants simply remove the case by filing a notice of removal with the federal court and a related notice in the state court. That automatically moves the case to federal court, where it will stay unless the federal court remands the case back to the state court.

what are my options to objecting to my own attorney's filing of the response without my consent ?

None exist.

As my representative to the court, he has refused to comply with my instructions that he amend or submit a supplement to the response. What other options are available to modify or stay the response as this is a critical aspect of the pleadings ?

Fire your attorney and hire a new one who follows your directions.

What are reasonable timelines for me to alert the court of a due process violation ?

What you've described is, at best, a malpractice claim for which you could sue your attorney after you fire him.

you probably looked up a bunch of stuff on the internet and know just enough to be dangerous.

If you can't have a candid conversation with your attorney about how and why he did what he did, then fire him and get another.

Concur.

 

[cbg]

*speaks generally into the wind, without addressing anyone in particular.

I am often surprised by the number of people who fail to realize that on many occasions, when an attorney fails to comply with a client's wishes, it is often because the client is instructing him to do things that are not permitted by the court, are not relevant and/or do not support the clients case in the way the client believes, or in some cases are downright illegal.

Just thinking out loud.

 

[justblue]

*speaks generally into the wind, without addressing anyone in particular.

I am often surprised by the number of people who fail to realize that on many occasions, when an attorney fails to comply with a client's wishes, it is often because the client is instructing him to do things that are not permitted by the court, are not relevant and/or do not support the clients case in the way the client believes, or in some cases are downright illegal.

Just thinking out loud.

Quite a few attorneys listened to their client/did as instructed, rather than follow the rules/codes/ethics/law and have been centured/fined/disbarred.

 

[Gregory22]

Just to clarify: a motion to dismiss, in which the well-pleaded facts in the complaint were accepted as true and one or more defendants asked the court to dismiss on the ground that the complaint failed to state a claim for which relief could be granted. Right?


Normally, in deciding a motion to dismiss, the court may not consider evidence outside the four corners of the complaint. On what basis do you think it was proper for the court to consider this evidence? the evidence was public testimony from a legislative session, also the defense filed 23 exhibits on the motion to dismiss.....



One does not "motion" ("move" is the correct term) to "move [a case] to the federal jurisdiction." If federal jurisdiction exists, then the defendants simply remove the case by filing a notice of removal with the federal court and a related notice in the state court. That automatically moves the case to federal court, where it will stay unless the federal court remands the case back to the state court.


None exist.



Fire your attorney and hire a new one who follows your directions. Agreed.



What you've described is, at best, a malpractice claim for which you could sue your attorney after you fire him.


Concur.

with gratitude for your time, thank you Zddoodah.

Guys are doing a great job of validating if a post author is a maverick with an agenda, i assure you i am not. However i am a father and rep for my family, seeking to ensure that fairness is available in our system. It is a mountain worth climbing , albeit rife with peril, and i certainly have remained professional and respectful, but also persistent.

The claim asks for injunctive relief and equity, the claim is discrimination, and based on our two sons, one benefited from the IEP and the other did not, circumstances are only difference in age and timeline of testing. The injunction has legs, in response we did ask to amend the claim if the court felt there was a deficit in the claim.

The defense filed 23 exhibits in the motion to dismiss.

It is a municipal/ state issue where the school performed several actions : 1) a actor of the state in on decision, and a 2) as a individual policy maker in a second decision.



( Again kudos to moderators for keeping the forum integrity and remaining welcoming to the non-professionals. I can appreciate that respectful and informed clients may not represent the majority of forum visitors, yet for those that value the protections of our laws and interpretations, please allow us to ask poorly formed questions, promote reasonable discussion and discourse , furthering the interests of the forum. )

 

[army judge]

AJ comment about reading the retaining agreement is also accurate.

Can you speak to my question about the attorney selectively not including my exhibits or filing a response without consent ?
is this a due process violation ?

I can only speak for myself, the associates, and partners of the firm I founded.

I am diligent, attentive, and focused upon every client's case. I retired 15 years ago. The firm's daily operations are headed by my daughter, as managing partner.

I don't take strategic, tactical, or legal direction from any client.
The members of my firm don't, either.

We're licensed professionals.
As I alluded to above, would a physician diagnosing, resecting, examining, or prescribing medication for a malady or injury allow a patient to direct her professional efforts?

That said, we discuss everything about a client's case with her/him. We just don't take specific direction.

At any rate, you might find the following information useful:

An IEP is a written plan for the provision of services for the education of students who are disabled or gifted. The district has a responsibility under Child FindOpens In A New Window for children "thought-to-be" eligible for special education services and/or accommodations. This responsibility includes locating, identifying, and evaluating all students with suspected disabilities, including but not limited to evaluating students for whom a request for an evaluation has been made.

Two criteria exist for an IEP, both of which must be met:

The student must meet one of the 13 disability categories defined by the Individuals with Disabilities Education Act, 2004 (IDEAOpens In A New Window).
The student must need special education; that is, the child requires specifically designed instruction to receive educational benefits

According to 34 CFR § 300.8 (related to a Child with a disability) http://ecfr.gpoaccess.gov/cgi/t/tex...v8&view=text&node=34:2.1.1.1.1.1.36.7&idno=34
Opens In A New Window, the 13 categories are:

Mental retardation ( pending language Rosa's Law (2010 - S. 2781) Opens In A New Window change to " intellectual disability http://www.gpo.gov/fdsys/pkg/PLAW-111publ256/pdf/PLAW-111publ256.pdf Opens In A New Window")
Hearing impairment
Speech or language impairment,
Visual impairment (including blindness)
Emotional disturbance
Orthopedic impairment
Autism
Traumatic brain injury
Other health impairment
Specific learning disability
Deafness
Deaf-blindness
Multiple disabilities

Emotional disturbance is defined at 34 CFR § 300.8(c)(4) as:

An inability to learn that cannot be explained by intellectual, sensory, or health factors.
An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
Inappropriate types of behavior or feelings under normal circumstances.
A general pervasive mood of unhappiness or depression.
A tendency to develop physical symptoms or fears associated with personal or school problems.
If a child is identified by a school district as "thought-to-be" disabled and in possible need of specially designed instruction under IDEA and Chapter 14, the district should move forward with a special education evaluation under IDEA Individuals with Disabilities Education Act (IDEA) Opens In A New Window and 22 PA Code Chapter 14 22 Pa. Code Chapter 14. Special Education Services And Programs Opens In A New Window.

IEPs and 504 Service Agreements
...


22 Pa. Code § 14.121. Child find.
...

 

[Gregory22]

Army Judge, Thank you very much for the IEP links and discussion.

I can appreciate establishing firm boundaries when clients demand a strategy or tactic.

ps. Any recommendations regarding a question about state officer immunity waivers when cases are moved to federal courts. ? I know it's a significant area of conversation and your guidance in advance may help keep it on track. Any suggestions other than a new post /forum topic ?

 

[army judge]

Army Judge, Thank you very much for the IEP links and discussion.

I can appreciate establishing firm boundaries when clients demand a strategy or tactic.

ps. Any recommendations regarding a question about state officer immunity waivers when cases are moved to federal courts. ? I know it's a significant area of conversation and your guidance in advance may help keep it on track. Any suggestions other than a new post /forum topic ?

I suspect a federal judge will be reluctant to become too deeply involved from enjoining or restraining state agents/officials in the performance of their constitutional/statutory duties.

Good luck.