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Can lawyer testify in case?


rikkivs
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Hi everyone, I have a quick question. I've seen declarations and motions for many cases and in each one, the attorney says that he is competent to testify in the case if asked to do so. Is that an ethical violation or can they really do that?

Secondly, can the attorney act as custodian of records for the original creditor? This is what he is saying but it doesn't make sense. Help anyone?!

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I may be wrong, but I'm pretty sure most states prohibit an attorney from testifying on behalf of their client. In my state, it is law that they can't. As for your second question, I don't see how an attorney can act as a custodian of records for their client, unless they were an employee acting in that capacity, and then they better be able to prove it....something smells fishy here. :) Maybe give some more details, i.e. why is this attorney saying he is the custodian of records for the OC?

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He was making a miscellaneous declaration on behalf of plaintiff's counsel and he said he was the custodian of records for the plaintiff and could testify if called to do so. Many of these types of declarations use that same sentence and I don't understand why. I did some Googling and saw that in some instances attorneys can testify in cases in which they litigate but only under very narrow circumstances. I have not seen this applied to a collections case and am curious if anyone knows about the state of California.

I do think it sounds fishy that he can both act as attorney and custodian of records, however; especially since he is supposed to be representing the original creditor. Thanks for letting me know how things are done in your state, perhaps I can find some thing similar for mine:)

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Court papers normally require someone with personal knowledge for the affidavit to have any real weight, so the line : so would testify" is often used to say the perosnal has knowledge. But unless teh lawyer can show an independent basis for wnowing what he says he knows, you ignore the phrase and the affidavit is hearsay.

Can the lawyer also be the custodian? Ask for the custodial agreement. He's just being lazy

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I appreciate the responses guys. Recovering attorney, thanks for putting it into perspective. I was confused when I saw that statement and now realize that the guy is being lazy and just using language meant to intimidate me. Now, I have to figure out what to say and how to say it so that I don't come off like a total jerk, er like him! Ha!

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The attorney said he was the custodian of business records for plaintiff's counsel and would testify in this matter if called to do so. I realize that is a bit different than saying he is the custodian of business records for the plaintiff. But still this is fishy because what could he testify about? He's never spoken to me at all and is a totally different attorney than the attorneys of record for this case. What a jackass!

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Short answer....NO!

Who says? U.S. Supreme Court. Trinsey vs. Pagliaro. "Statements of counsel, whether in brief or oral argument, are not sufficient" for a motion to dismiss or summary judgment.

Do attorneys testify evey day?

YES

Why? Becasue no one is there to object!

This court simple procedure is violated millions of times per day.

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Short answer....NO!

Who says? U.S. Supreme Court. Trinsey vs. Pagliaro. "Statements of counsel, whether in brief or oral argument, are not sufficient" for a motion to dismiss or summary judgment.

QUOTE]

That is different. That just means that statements in briefs or to the Court do not constitute "evidence".

An attorney may have personal knowledge of certain facts that would be appropriate in a declaration to the court. An example would be a meet and confer declaration where the attorney describes a conversation that she participated in.

Your situation is different. It may cross the line depending on whether the authenticity of the documents is in dispute and whether the attorney has the informed written consent of the client. Here is the applicable rule:

http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath=Current_Rules.gif&sCategoryPath=/Home/Attorney%20Resources/Rules/Rules%20of%20Professional%20Conduct&sFileType=HTML&sCatHtmlPath=html/RPC_Current-Rules-5-210.html

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Yes, in my case, the attorney was making a declaration to combat some stuff I told the judge. I'd never heard of him prior to receiving this piece of paper. He didn't participate in any meetings with attorneys I've spoken to in the case and his name wasn't on the affidavit attached to the summons. So he can testify about whatever...but I suspect he is the 'bulldog' of the attorneys at their firm...

Edited by rikkivs
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PLEADINGS ARE NOT EVIDENCE!

Affidavits are evidence.

Any statement made without personal knowledge is NOT EVIDENCE!

An attorney can NEVER make any statement authenticating records of a credit card.

Attorneys testifying....ALWAYS OBJECT!

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TQ Can you do that if they were supposedly the OC?

In California, we have our own state fair debt collection act (the Rosenthal Act). Civil Code 1788 et. seq. It largely mirrors the FDCPA. However, under 1788.2 ©, it applies to OC's:

"The term "debt collector" means any person who, in the

ordinary course of business, regularly, on behalf of himself or

herself or others, engages in debt collection."

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