Legal Question in Legal Malpractice in Maryland
Using wrong defense
My 13 yr. old son was charged with a misdemeanor by DJS. He was taking Paxil and Trazadone at the time. Our laywer said to use my son's IEP (Individual Education Plan)as his defense since his being bullied in school was involved. We said that it was the medication he was on that was causing his out of character behavior. My wife and I researched this thoroughly. Laywer went with IEP defense. Master said Court has no say over IEP's since they are federally mandated. We lost. My son spent 6 months in a mental institution being evaluated while we filed for an exceptions hearing asking that my wife and I be allowed to be co-counsel to our son and allowed to ask questions of DJS. During the two previous hearings, our lawyer did not object to anything that DJS or the State said. When DJS & State began attacking myself and my wife as good parental role models, our lawyer said that he could not defend us because he was my son's laywer & not ours. Two days before the exceptions hearing, DJS & the State said our son had progressed enough to come home. They originally wanted him confined for 12 to 18 months. They knew that when we started asking our own questions, things would be exposed in court that they did not want to come out.
2 Answers from Attorneys
Re: Using wrong defense
You didn't ask a question, but I'll assume you think your lawyer committed malpractice, since that's the slugline of your inquiry.
Just because you lose your case doesn't mean your lawyer committed malpractice.
In the example you give, you think the medication caused your son's behavioral problems. However, in order to present this theory to the master, you probably would need well-established scientific/medical evidence, as well as an expensive medical expert witness to evaluate your son and testify. Maybe your attorney didn't think that was possible. Maybe you couldn't afford it. Maybe the scientific/medical literature doesn't support your theory.
Maybe you lost for some other reason.
Re: Using wrong defense
You present the relevant facts but did not include the charges. The use of the IEP may or may not have been
a viable defense. As I infer, the attorney argued that the IEP should be adjusted/modified. This, as you observe,
could not be pursued due to federal/state authority issues. Presenting the IEP, however, could be used as a defense even though
there would be no authority, as you say, for the state to modify it. It appears that the IEP was presented as a mitigating factor.
Mitigation is a defensive strategy.
I am not saying that you should not pursue remedy where it may lie. However, your attention should be primarily focused on your child.
Taking all steps to avoid further problems is the most important objective.
Whether the attorney should have objected during the hearing/trial cannot be identified without a review of the record/transcript. Timely appeals are required or the right to an appeal is lost.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
