When Obnoxious Lawyers Converge, Clients Are Not Well-Served

One of the worst possible scenarios for those unlucky enough to be involved in a lawsuit is when their respective lawyers are at each other’s throats. You may think you are being well-served by an aggressive, boorish lawyer whose focus is on denigrating and insulting opposing counsel, but you are not.

On the other hand, as a client you should be happy if you know or see that your lawyer has a good working relationship with opposing counsel, as you can be sure that the resolution of your case will not be hampered by ill-will between lawyers.

Oddly enough, some clients are disturbed when they see cooperation between their lawyers, misreading it as a sign of weakness on their lawyer’s part. Nothing could be further from the truth.

In fact, there are lawyers who are so well-known for their cranky, obnoxious behavior that other lawyers refuse to take on cases where Mr. or Ms. Miserable is on the opposite side.

A recent example of bickering lawyers arose in a courtroom in Chicago, where last week the final act of an ongoing legal saga came to an end, with Judge Raymond Mitchell ordering both lawyers to resign from the case and their clients to retain new lawyers.

Lawyers Joel Brodsky and Michael Meschino treated their clients and the court to months of disturbing behavior while representing their clients in a business dispute, taking potshots at one another in open court, with no concern for their lack of professionalism and decorum.

At one point Mr. Brodsky called Mr. Meschino a “moron” and a “liar”. Meschino responded with words like “fat, short, and bald” complaining that “Brodsky was constantly shaking his bald head, so that a light was shining on me”. Over time, when the lawyers were in court, up to four sheriffs were present in the courtroom and on two occasions Mr. Meschino was escorted out of the courtroom by sheriffs.

Outside of court, threatening and insulting emails were the norm, and discovery of each party took place in the courthouse rather than in the privacy of a court reporter’s office, as is the usual practice.

Judge Mitchell advised Brodsky and Meschino that a copy of his order would be sent to the Illinois Attorney Discipline Commission so that appropriate action could be taken by the Illinois Bar.

Joel Brodsky is certainly no stranger to ethics complaints. He was the lawyer that acted for former police office Drew Peterson, who was accused of murdering his third wife Kathleen Savio.

Before the case was finished Mr. Brodsky was replaced by new counsel, an event that did not sit well with him. His public comments after his departure as counsel “shocked” the trial judge and resulted in an ethics investigation.

After Drew Peterson was convicted, the animosity between Brodsky and successor counsel, Steven Greenberg was so intense that Brodsky sued Greenberg for defamation, suggesting that Greenberg was a “pathological narcissist”.

Not surprisingly, Brodsky also suggested that Mr. Meschino was mentally ill.

While emotions can run high in hard-fought litigation, the behavior cited by Judge Mitchell has no place in our justice system and the harshest punishment should be levied against lawyers who embarrass themselves and the administration of justice. Sadly, it is their clients who suffer most.

Lawdiva aka Georgialee Lang

Texas Judge Arrested for Hiding Evidence as a Lawyer

Michael Morton was convicted of murdering his wife, Christine Morton, in 1987 and served 25 years in a Texas prison. But justice was not served because prosecutor, now Judge Ken Anderson, purposefully withheld evidence that would have led to Michael Morton’s acquittal.

Instead Mr. Morton, an innocent man, languished in prison until DNA evidence exculpated him because the State of Texas, in the person of Ken Anderson, believed he was guilty, despite evidence that suggested otherwise. Morton was then 30-years old, worked at Safeway and had no police history

Anderson, a judge in Austin Texas for 11 years, was a celebrated “law and order” district attorney for 16 years before that. He prided himself in requesting and receiving the harshest sentences possible for criminals and argued vigorously to prevent inmates from being paroled, even when their prison terms had been served.

In Mr. Morton’s case he buried a bloodied bandana found near the family home, failed to reveal evidence relating to a mysterious green van near the home, from which a man emerged, and hid a statement from Morton’s three-year old son who said that it was a “monster”, not his dad that bludgeoned his mother to death.

To add to Mr. Anderson’s outrageous behavior, when asked during Morton’s trial whether all evidence had been delivered to defence counsel and the court, Anderson lied and said it had.

As is typical in these cases of wrongful conviction, the State erected roadblocks preventing Innocence Project lawyers from obtaining timely DNA testing on the bandana found near the scene. The forensics on this evidence proved that Mark Norwood was the killer, a man who had also murdered another woman near Austin. Last month Norwood was sentenced to life in prison for Christin Morton’s murder.

Judge Anderson’s apology to Mr. Morton was brief. He said “the system screwed up”. Obviously, a man in denial and all because he wanted another “conviction” notch on his belt.

He not only robbed Michael Morton of his life but also Morton’s son, who grew up without a mother or a father.

Lawdiva aka Georgialee Lang

Trial Debacle Leads to Freedom for Nova Scotia Sex Offender

Despite what you hear or read, you can’t blame Ernest MacIntosh for today’s Supreme Court of Canada decision to quash his convictions for sex charges involving young boys in the 1970′s.

A successful Cape Breton businessman, MacIntosh was transferred by his employer to Singapore and then to India in 1994 where he remained until his extradition back to Canada in 2007 to face numerous counts of indecent assault and gross indecency charges stemming from allegations made by six young men in 1995.

When MacIntosh left Canada in 1994 there were no charges against him and he had no idea that charges may be laid. Over the years he travelled between India and Canada, renewing his Canadian passport from time to time as required by Canadian law.

He was not hiding from the law. Canadian authorities knew where he lived in New Delhi and had his phone number. Coincidentally, one of his neighbours was an RCMP officer who worked as a liaison in India.

MacIntosh finally became aware of two criminal charges in 1997 but was led to believe by Canada Passport authorities that the charges were not proceeding. He heard nothing more until nine years later, despite the fact that in 2001 fifteen more charges were brought against him and he renewed his passport in 2002. The Crown acknowledged their decision to extradite Mr. MacIntosh in 1997 but as you will read, did nothing about it for nine years.

In 2006 the Crown filed extradition proceedings in India, some 11 years after the first charges were laid and five years after the second group of charges were filed against him.

Mr. MacIntosh was brought back to Canada in June 2007 but did not receive complete mandatory disclosure from the Crown until eleven months later, an astonishing delay considering that the Crown had readied their cases years before.

He finally went to trial in July 2010 and was convicted on several of the charges. However, the Nova Scotia Court of Appeal overturned the convictions based on the 14 year delay of the Crown in proceeding against MacIntosh. But that wasn’t the only problem with the convictions.

The trial judge had so badly confused the evidence, even mixing up the witnesses and attributing evidence to one witness that was derived from another, that the Appeal Court determined that even absent the extraordinary delay, the judge’s errors would be cause for a new trial.

A key issue at the trial was centred on statements made by an alleged victim in 1995 and again in 2000 concerning details of the abuse he suffered, that simply could not be reconciled.

The trial judge acknowledged the discrepancies and based on the victim’s evidence and the testimony of another witness, determined that the assault did not take place at all. Yet despite this finding, the judge did not turn his attention to the issue of the victim’s overall credibility.

The finding that the alleged abuse did not occur as described, or at all, points to a flaw in the Crown’s preparation of their witness. In cases where a witness signs a comprehensive statement which he radically amends five years later, it is incumbent upon the Crown to test the evidence of the witness to ensure its reliability. Under cross-examination, this witness agreed that the event did not occur.

That the Supreme Court of Canada denied the Crown’s appeal in an oral judgment from the bench speaks to the Crown’s flimsy case. After all, an accused is not obliged to turn himself into the police or give a statement. It is the Crown’s job to bring an accused to trial.

Most notably, the Crown was unable to provide any rationale for their delay in prosecuting this case and cries for a public inquiry may well be revived now that our highest court has spoken.

Has an injustice occurred? Perhaps, but the fault lies with those paid to bring criminals to trial.

Twenty-Year Old Divorce Case Reopened: It’s Not Over Til It’s Over

In 1990 New York securities trader Steven Cohen was just beginning to see the fruits of his Wall Street career ripen. The only bad news was that his marriage didn’t survive and he needed to negotiate a financial settlement with his wife, Patricia Cohen.

At the time he told his wife that he had lost $9 million dollars in a co-op apartment investment he made in 1986, leaving his net worth at a mere $8.1 million. She didn’t believe him, but had no grounds to refute his assertion.

Mr. Cohen remarried two years later and built his business, SAC Capital, growing it from $25 million in assets to several billion dollars. Life was very good for him, until 2008.

It was then Ms. Cohen discovered a court file that revealed her ex-husband had settled the investment loss case with one of his co-op partners and recovered $5.5 million. She filed a lawsuit against him in 2009 alleging fraud.

Unfortunately, the first judge who heard the case threw it out saying the claim was too old to pursue and was unsubstantiated.

The Manhattan Appeals Court saw it differently. This month they reinstated Ms. Cohen’s lawsuit holding that the lack of timeliness in its filing was because she only discovered evidence of fraud eighteen years after the divorce.

My advice to Mr. Cohen: “Settle this case now, after all, you are a multi-billionaire and will likely not even notice a shortage of a couple of million.”

Besides, Cohen’s $15-billion dollar hedge-fund is the target of an insider trading investigation that has already seen the arrest of five individuals related to his Connecticut-based business. As well, two companies affiliated with SAC Capital have recently settled insider trading allegations with the US Securities and Exchange Commission for $614 million dollars, the largest insider trading settlement in the United States.

While there have been no charges laid against Mr. Cohen, the SEC is breathing down his neck. He really doesn’t need the aggravation of his ex-wife’s court action and the publicity that accompanies it.

Family law is different however. Cases that should be settled often are not because of petty vindictiveness and the need to win, and of course, Cohen can afford to bury his ex in legal fees.

Lawdiva aka Georgialee Lang

Making Babies Is a Tricky Business

With the extraordinary science that benefits childless couples and the growing popularity of reproductive technologies, the prediction from early naysayers that baby-making would create criminal, social and ethical problems can no longer be ignored.

Public awareness of the foibles of procedures such as artificial insemination, in vitro fertilization, and anonymous sperm donation began with the news that a California woman, Nadya Suleman, gave birth to eight children via in vitro fertilization in 2009. Twelve embryos had been implanted, apparently at her request.

Ms. Suleman’s octuplets joined her already large family of six children, also born through in vitro fertilization. That she was a single mother with limited financial resources and was eventually compelled to work as a stripper and a nude model further rankled critics who denounced her physician, Dr. Michael Kamrava, who later lost his medical license.

The latest scandal in the baby-making industry involves a home-grown business called Canadian Fertility Consultants, with offices in British Columbia and Ontario, whose CEO, Leia Picard, has been charged with 27 criminal offences including purchasing sperm and egg from a donor and paying a surrogate to carry a baby for a client.

Under Canadian law it is illegal to pay sperm or egg donors and surrogates are only allowed to be paid for their reasonable expenses. While limited information has been released by the RCMP, it has been reported that two women who donated eggs were paid $5000.00 each.

Ms. Picard has also been charged with four counts of forgery in relation to allegations that her clients received false profiles of two of her sperm donors and two potential surrogate mothers.

Canada’s legislation has been in force for almost nine years, but this appears to be the first time that charges have resulted from a breach of the law, with related criminal charges.

There is speculation that Ms. Picard’s present legal problems arise from her purely innocent interaction with Maryland lawyer Hilary Nieman, who ran a surrogacy business with California lawyer, Theresa Erickson, that later proved to be anything but altruistic.

Under a unique California law, a woman can enter into a surrogacy agreement with prospective parents, but the agreement must be signed and finalized prior to the fertilization of the surrogate. Where there is a surrogacy agreement, the prospective parents do not need to go through an adoption to become the child’s legal parents as the child’s birth certificate will record the names of the prospective parents, not the surrogate’s name.

Lawyers Nieman and Erickson both specialized in reproductive technology law. Working together, they paid American women an average of $40,000 to travel to the Ukraine to be implanted with embryos. This was necessary because no doctor in California would do the in vitro procedure under the circumstances presented by the surrogates.

The lawyers got around the requirement for an executed agreement prior to fertilization by submitting forged documents to the Court which attested to the agreement being signed as required by the law.

Ms. Erickson with Hilary Nieman’s help, accumulated a stable of new-born babies ready to be sold to unsuspecting couples for $100,000 to $150,000 each.

In the twelfth week of their pregnancy the women, referred to as “gestational carriers”, flew back to the United States where the lawyers would find a couple who were told that a surrogacy agreement with another couple had fallen through after the couple backed out.

For couples who had tried numerous procedures over many years without the blessing of a child, the prospects of a new-born baby was like winning the lottery.

Erickson and Nieman, both plead guilty to wire fraud and conspiracy, involving the sale of twelve babies. Although lawyers for the State and Ms. Nieman agreed to a plea bargain of nine months of home confinement, the Court would have no part of that and sentenced Nieman to five months in federal prison and seven months of home confinement. She was also order to pay back profits of $133,000 and was later disbarred.

We now await full particulars of the charges against Ms. Picard, but payments of several thousand dollars to egg donors hardly seems worth the cost of the RCMP’s year-long investigation. Allegations of forgery, however, puts an entirely different spin on the agency’s practices.

Ms. Picard says she will vigourously defend against the charges and is inviting donations to her legal fund.

Lawdiva aka Georgialee Lang

Legal Marijuana and Family Law

The abuse of alcohol is often a factor in contested child custody and access hearings. While “social” drinking has never been a concern, where a parent has a history of alcoholism, binge drinking, or drinking and driving, a court will seriously examine whether alcohol abuse is present and take steps to ensure children are protected from its impact.

With the legalization of marijuana in Washington State and Colorado, and the introduction of decriminalization bills in New Jersey, Texas and New Hampshire, family court judges will be faced with a fresh dilemma. When smoking marijuana was against the law, it was clear: a parent who broke the law may not be a suitable custodial parent in some jurisdictions. More often both parents engaged in the activity so the issue never saw the light of day in a courtroom.

But in states where marijuana is now legal and government regulated, it can’t be any different from the consumption of alcohol, which is not a problem unless it results in dangerous behavior affecting the child.

Also consider whether smoking pot in a state where it is not legal but has been decriminalized is any different? Marijuana advocates, who favour legalization, realize that in many jurisdictions legalized pot may be difficult to achieve, but who can argue against decriminalizing marijuana possession in small amounts?

It is inevitable that the legalization/decriminalization debate will come to Canada, particularly if the Liberals are able to oust the Conservative Harper government.

Lawdiva aka Georgialee Lang

Toddler’s Death During Access Leads to Lawsuit Against Psychologist

Prince McLeod Rams was 15 months old and on his fourth unsupervised access visit with his father, Joaquin Rams. It would be the last day of Prince’s short life, as during the three-hour visit, he drowned in his father’s bathtub.

Hospital staff became immediately suspicious when they noticed a bruise on Princes’ forehead and dried blood in his nostrils. They contacted child protective services.

It would later be discovered that Prince’s father had purchased over a half a million dollars in life insurance on his son’s life, and that he was under investigation for the murder of his former girlfriend, Shawna Mason, who was shot to death in 2003.

Prince’s mother, Hera McLeod, who had sole custody of her son, had implored the Court to grant only supervised access to Mr. Rams. However, the Court determined that allegations that he ran an on-line pornography site, was a suspect in the death of his former girlfriend, and was also accused of raping a 19-year-old girl were unproven and speculative. Judge Michael Algeo called the allegations “smoke that’s been blowing that I can see through”.

Since being charged with Prince’s murder, the investigation into the death of Rams’ former girlfriend has gained traction and officials are also looking into the circumstances of his mother’s 2008 suicide, a death that some members of the Rams family believe was murder, not suicide. Mr. Rams received his mother’s life insurance, a benefit that rescued him from his dire financial circumstances.

Recently, Prince’s mother filed a lawsuit against psychologist Margaret Wong, who prepared a custody and access report that recommended Mr. Rams be allowed unsupervised access to Prince, expert evidence that was instrumental in the Court’s access decision.

While Ms. McLeod acknowledged that her son’s father was highly manipulative during their 18-month relationship, she suggested that a skilled psychologist, like Margaret Wong, should have detected his true character and focused on her son’s best interests, not her ex’s needs and desires.

Ms. McLeod tells the tragic story on her blog “cappucinoqueen”, while Mr. Rams writes his counterpoint at “KingLatte”. He insists he his innocent and that his son died of a seizure, however, the county medical examiner’s findings negate Mr. Rams’ allegations.

Hopefully, the truth will emerge at Mr. Rams’ trial later this year.

Lawdiva aka Georgialee Lang

Conrad Black Must Wait in Court Line Like Everyone Else

Conrad Black’s battle to retain his Order of Canada designation will not be resolved quickly, much to his dismay.

Upon receiving notice that the Governor-General’s Advisory Council was reviewing his membership in the Order of Canada, Lord Black sought an opportunity to make oral submissions to the Council, a suggestion rebuffed by them. His attempt to obtain a court order from the Federal Court also failed when they ruled that the removal process only permitted written submissions.

Mr. Black filed an appeal to the Federal Court of Appeal and brought a motion asking the Appeal Court to expedite his appeal hearing, however, he ran into a roadblock when the Court refused to move his case to the front of the line.

The expression “justice for all” comes to mind, or in this case, the delay in Canada’s justice system is an annoyance that does not differentiate between rich or poor, high-profile case or minor nuisance, or expensive lawyer or legal aid.

What it does underscore, however, is the frustration of litigants who wait not months, but years, to access what is reputedly one of the world’s leading justice systems, and everyone is complaining.

Chief Justice Beverly McLachlin, who also happens to Chair the ten-member Advisory Council,in a recent speech at the Empire Club in Toronto, identified “delay” as one of the greatest challenges to our court system. She noted that murder trials that used to occupy five to seven days of court time, now take five to seven months and quoted statistics that an average trial in Vancouver in 1996 took 12.9 hours and only six years later, required an average of 25.7 hours to complete.

Mr. Black is waiting for a date in the Federal Court, a system that is bogged down by thousands of immigration cases and no wonder, when you consider cases like Parminder Singh Saini, a convicted hijacker who entered Canada using a false name and then tied up the Federal Court system for fifteen years in his attempts to avoid deportation.

Meanwhile, Ashley Smith, the young woman who died in prison custody and is now the subject of a coroner’s inquest in Toronto, filed a grievance with the Federal Court, who has jurisdiction over prisons and inmates, that was only opened two months after her death.

So now Conrad Black is at the back of the 12 to 18 month line-up that plagues not just the Federal Court but Provincial and Superior Courts across Canada.

Welcome to the world of single mothers waiting for child support hearings; wrongfully dismissed employees longing for recompense for lost wages; car accident victims who desperately wait for their damage awards and tens of thousands of others who still want to believe that Canada has the finest justice system in the world.

Lawdiva aka Georgialee Lang

Hockey Pedophile Graham James Receives Longer Sentence From Appeal Court

Canadian National Hockey League star Theo Fleury, winner of a Stanley Cup ring and an Olympic gold medal does not mince words. He says that Canada is a “Disneyland for pedophiles” and I think he’s right.

Fleury was yet another victim of Graham James, the now infamous hockey coach and mentor, who sexually abused young boys under his tutelage, ruining their lives in the process. Convicted in 1997 for sexually abusing professional hockey player Sheldon Kennedy, he was then sentenced to a mere three and a half years in prison for multiple criminal counts involving Mr. Kennedy and another young man. He served only eighteen months.

It was Sheldon Kennedy who encouraged Theo Fleury to report the abuse he suffered at the hands of James in the 1980′s. The police investigated and filed new charges against Graham James, who plead guilty and was sentenced to two years in prison in March 2012.

At the time of the new charges, it came to light that Mr. James had received a federal pardon in 2007, an event that shocked the Canadian public and led to federal legislation excluding sex offenders from receiving pardons, now called “record suspensions”.

But James foolishly appealed his two-year sentence, his lawyer arguing that he should have received no jail time at all. The Manitoba Court of Appeal heard the case on December 3, 2012 and fortunately, Mr. James’ appeal strategy backfired. Today the Appeal Court increased Mr. James’ jail term from two years to five years.

In my view, the initial two-year sentence was the revictimization of Mr. Fleury and impotent sentencing for pedophiles is abhorrent, given the aftermath of damaged victims who struggle with substance addictions and broken relationships, which can be directly linked to the shame and fear emanating from the physical, emotional and psychological consequences of sexual abuse.

Kudos to Mr. Fleury who recently announced that he has taken the sentencing of pedophiles as a project to champion a change in sentencing and support other victims of these atrocious crimes. His first recommendation? Minimum sentences of fifteen years in prison for each count of sexual abuse, additional counts to run consecutively, rather than concurrently, which is the situation today.

Mr. Fleury praised the Manitoba Court of Appeal for increasing sex predator James’ sentence, calling it a good day for survivors of sexual abuse.

Lawdiva aka Georgialee Lang

Anti-Gay Bill in Uganda Resurfaces

When you live in a country where human rights and the equality of every man and woman is revered, it is difficult to comprehend a society where Parliamentarians debated and considered imposing the death penalty for people who are gay, lesbian or transgendered.

Uganda’s gay agenda, introduced in 2009, made international headlines in 2011 with the murder of Ugandan gay rights activist David Kato, who was bludgeoned to death in his home in Kampala.

Mr. Kato was one of a large group of gays and lesbians “outed” by the Ugandan newspaper, Rolling Stone (no relation to the American publication) in October 2010. The headline read: “100 Pictures of Uganda’s Homos Leak”. The article contained Mr. Kato’s name and home address. It also identified venues frequented by gays and lesbians. Its subheading read “Hang them”.

Homosexuality is already illegal in Uganda and imprisonment of up to 14 years may be imposed. However, it was a bill introduced by politician David Bahati in 2009, and recently resurrected, that has upped the ante for Uganda’s gay population.

The original Anti-Homosexuality Bill imposed the death penalty for serial homosexual offences; for sexual activity with persons under the age of 18 or the disabled; and for sexual activity where HIV is passed to another.

It has now been reported that after world-wide criticism, including from Prime Minister Stephen Harper, the death penalty provisions have been abandoned in favour of life in prison.

However, government fervor behind the bill has not faded. In November 2012 the Speaker for the Ugandan Parliament announced that the amended bill would be passed before the end of 2012 as a “Christmas gift” for Ugandans, which has support from 96% of the electorate. Fortunately, this deadline passed with no new law, but law makers are expected to vote on the legislation this month.

Some media outlets report that Bahati’s bill came to fruition after he spent time with certain evangelical christians who came to Uganda in 2009, espousing family values and denouncing homosexuality as a sin. Barack Obama’s inauguration “Pastor”, Rick Warren from Saddleback, California, has been named as a Christian leader who influenced Mr. Bahati and other high-placed politicians.

Warren’s mega-church has focused considerable charitable efforts in Africa, including Uganda, however, Mr. Warren has forcefully denounced the death penalty bill, while adhering to biblical standards concerning sex outside of marriage and the sanctity of marriage, between one man and one woman.

A leading evangelical group in Canada, Crossroads Christian Communications, has also come under fire in recent days. Crossroads receives over $500,000 in funding from the Canadian government to bring aid to Uganda by building wells, latrines and promoting good hygiene.

Critics, however, decrie the organization’s public stance against homosexuality and it is reported that Crossroads funding will be reviewed in light of this position.

What cannot be overlooked, however, is that while many world religions consider homosexuality a sin, discrimination against gays, lesbians and the transgendered is a human rights issue and unlike the hateful Westborough Baptist Church in Kansas, there is no evidence to suggest that Rick Warren or Crossroads support human rights abuses. To the contrary, these organizations are bringing hope and change to Uganda.

Lawdiva aka Georgialee Lang