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?