FL

FL-326 and San Diego's Family Courts
A letter by Dr. Emad Tadros to the California Bar Association

Emad Tadros MD - Diplomate American Board of Psychiatry and Neurology.
3914 Third Ave. San Diego CA 92103
TadrosMD@pol.net
619-291-4808 & Fax: 619-291-4426

The California State Bar
Office of the Chief Trial Counsel -Intake Unit
1149 S. Hill Street, Los Angeles, CA 90015-2299
Atten: UPL Project

I am submitting a formal complaint asking for your immediate attention in regards to grave concerns about one of the Bar representatives, attorney Bob Lesh, Certified Family Law Specialist CA, President-Elect of the Executive Committee of the San Diego County Certified Family Law Specialists, and last but not least, the Chair of the Family Court Services Subcommittee for the San Diego County Certified Family Law Specialists.

History of the FL 326: In the nineties, California Families and Family Courts suffered countless complaints about incompetence, fraud, unprofessionalism and misrepresentation conducted by the Private Child Custody 730 Evaluators. The California Judicial Counsel/CJC decided to take the upper hand with firm measures by placing this serious matter under both judicial and parental control.

As a result, starting 2000, the CJC met on the average twice a year with every CA county court CEO along with the county’s presiding judges. It was considered pivotal that the public be present in those meetings to share their views and actually voted on how to serve the California Counties with a Statewide standard. CJC met in this public forum at least twice annually and since that time there have been other specific changes to the CJC forms FL326 and FL327.

Purpose of FL326: In 2001 CJC established CRC 5.225 that relates to the Appointment, Qualifications and Credentials of 730 Private Custody Evaluators. This was the birth of FL326 to be served on the parents where it would be filed by the Private Custody Evaluator at the Clerk’s Office and FL327 would be filed by the appointing judge, at the clerk’s office, as CJC strongly recommended. From its inception, FL326 was mandated to be signed under the penalty of perjury by the custody evaluator, for good reasons.

Evolution of FL326: Over the following few years, the CJC evolved this pivotal FL326 with more specific details about qualifying 730 Evaluators, requiring their educational background, qualifications, credentials, expertise and continuing education hours that are specified according to CJC State Family law, to be properly submitted before appointing each and every private custody evaluator.

Legality of FL 326: This FL 326 form continued to be signed “Under the Penalty of Perjury …regardless.”

The CRC 5.225 (k)(1)(B) [re-lettered to now be (l)(1)(B)] is boxed and bolded on the Mandatory FL326 as follows:

NOTICE:

Private Custody Evaluators must complete this form and file it with the clerk’s office no later than 10 days after notification of each appointment and before beginning any work on the child custody evaluation. (Cal. Rules of Court Rule 5.225 (k)(1)(B)

FL 326 becomes Mandatory: Starting on January 1^st 2005, CJC MANDATED this specific rule 5.225 (k)(1)(B) &(l)(1)(B) that only applies to FL326. CJC mandated that FL326 must be served on the parties involved in the custody action, signed under the Penalty of perjury by the 730 Evaluator and be filed with the Clerk of the Court, “no later than 10 days after notification of each appointment and before any work on each child custody evaluation has begun.”

CJC made sure to demand that such FL326 forms continue to be signed under the penalty of perjury, and mandated that new forms are filed individually for each and every new private custody evaluation case. CJC did not allow for any exemptions or alternatives. The CJC pursued such mandatory steps for good reasons.

Consequences of Violating FL326: In June 2009, it was discovered by a frustrated parent that the San Diego Superior Court CEO, Michael M. Roddy had been aware of the new CRC [5.225 (k)(1)(B) and (l)(1)(B)] mandatory rules, but chose not to implement them. As a result not one single FL326 form was filled out, and/or turned in, for any Custody Evaluation case. This is to say that not one member of the San Diego Bar Association bothered to even Read the Court’s new Rule Book. And if they did they either kept quiet or were told to do so: even after these rules became mandatory. This violation story broke on ABC news and is currently posted under the www.thepubliccourt.com and http://www.thepubliccourt.com/archives/1.

On 9-29-09, my attorney Mr. Mike Aguirre, past San Diego City Attorney, directed a formal communication (attached) to the Family Court Supervising Judge Hon. Lorna Alksne requesting the immediate compliance of such “mandatory but somehow missing” FL326 rules. Otherwise, some San Diego families were going to file a “Federal Relief Act.”

Following this 9-29-09 letter by Mr. Aguirre, the Hon. Judge Lorna Alksne sent an immediate notice to all San Diego County attorneys asking them to make sure that the FL326 forms were filed by their appointed evaluators in a timely manner (10 days before any custody evaluation work starts) and to follow the mandatory CRC as the law mandates.

Why Advance Notice about FL326 was Mandated to be given to parents: The main purpose for filing these missing FL326 forms is to give the parents a chance to check out, and make an educated decision to either hire or fire their appointed custody evaluator, before any work starts. However, in addition to robbing San Diego families of their new rights by lacking the filing of these mandatory forms with the Clerk’s office, this violation omitted who charged who and how many Thousands of Dollars the families were charged by the involved attorneys and custody evaluators.

Consequences of lacking the proper filing of FL326: By not complying with these rules in a timely manner, the question of Felony Tax Evasion on both the State and Federal levels by San Diego Attorneys and Private Child Custody Evaluators is now on the table. Otherwise, one wonders why these rules were not implemented when they became mandatory in January of 2005.

Filing the FL 326 after the Fact: Asking San Diego attorneys and/or Private Child Custody Evaluators, directly or indirectly, to go back to old case files and sign the FL326 forms, under the penalty of perjury, months / years after the work was started and/or completed is meaningless, unethical, and even criminal.

If any, it behooves each and every San Diego Attorney to contact the violated families (who were never allowed to be knowledgeable, or were ever timely served these mandatory FL326 forms), advise them of the violation committed and offer them a fair and equitable remedy due to the violations of the Mandatory Rules of Court caused by the involved attorneys and evaluators.

Mr. Lesh’s Professional Obligation: With Mr. Lesh being a Certified CA Family Law Specialist, the President-Elect of the Executive Committee of the San Diego County Certified Family Law Specialists, and last but not least, the Chair of the Family Court Services Subcommittee for the San Diego County Certified Family Law Specialists., he had a due diligence to notify the parents whose rights were violated; however, to date this has not been done. Mr. Lesh was also ethically and professionally obligated to advise San Diego County attorneys that filing these FL326 forms on any old cases is not only unethical, but illegal and criminal: especially if doing so would mean signing forms under the penalty of perjury after the fact, when the law mandated that they be signed “at least 10-days before any work started.”

Mr. Lesh Privately Prompts Family Attorneys to go to old cases: On October 1, 2009 Mr. Lesh sent a mass private email to all San Diego attorneys (attached) on the SDCBA list-serve. In that email Mr. Lesh stated:

In above email, Mr. Lesh asks San Diego Family Law attorneys to file these past due forms “appropriately.” Does this mean they are being filed only with the county clerk, or also with the parents whose rights were violated? I have written to Mr. Lesh asking to meet with him in this regard, however I have not heard from him.

I ask that the State Bar Association undertake whatever steps that it deems are necessary and appropriate, in keeping with the guidelines of how the Bar Association defines itself. For example at the Free Online Law Dictionary website (at http://legal-dictionary.thefreedictionary.com ), the Bar Association defines itself as “An organization of lawyers established to promote professional competence, enforce standards of ethical conduct, and encourage a spirit of public service “pursued” in the spirit of a service of furthering the administration of justice according to law.” The article goes on to describe members of the Bar association (or lawyers) as those who “encourage” and/or “offer Pro Bono … services.” When in-fact Mr. Lesh was prompting the attorneys to the untimely FL326 filing so they would NOT have to refund any money back to the violated families, instead of prompting them to call the families and acknowledge that their rights were clearly violated.

On the behalf of countless San Diego families and on the behalf of California Coalition for Families and Children/CCFC, I appreciate your seriously needed attention to this matter. We ask the California State Bar Association to undertake the next step that would deem appropriate towards San Diego County Violated Families.

1- Mr. Lesh Private Email to the San Diego County Attorneys dated October 1-2009.

3- Attorney Mike Aguirre’s letter to the San Diego Family Court Presiding Judge.