Why Family Law Lawyers Will Always Bill By the Hour

GEO CASUALI read a piece in the Huffington Post this week written by Jim Halfens of Divorce Hotel, who argued that it was about time that divorce lawyers charged a fixed fee for the legal work they perform, instead of sticking to the “old way” of hourly billing.

It will never happen and for good reason! If Mr. Halfen knew the frailties of the family court system and the opportunities for abuse and delay, he would understand. But let me paint you a picture of regular occurrences in the practice of family law;

A client asks you to draw up a comprehensive separation agreement or prenuptial agreement, which without complications will cost in the range of $3,000. The problem is that often clients will request the agreement, expend the funds, all without having any idea whether their spouse will agree or sign the agreement.

Of course, it is an utter waste of time to present an agreement to your spouse, the terms of which have never been discussed with him or her. My practice is to warn clients that they may be wasting money, if they haven’t bothered to determine if their spouse is “on side”.

Once the client believes their spouse will cooperate, it is a “go” for the agreement and usually clients want to know exactly how much it will cost and want you to guarantee that fee estimate.

But it can’t be done….because every agreement and spouse is different and you can never rely on a client’s advice that their situation is straight forward. For example, it is commonplace to ask your client to provide you with a list of all their assets, their estimated values, and also their debts and the amounts owing. You also need the same information from their partner.

Of course, you can’t forget to request their recent personal and corporate tax returns, and in the case of companies, the financial statements as well. While the client may imagine their financial situation is simple, usually it is not, particularly where there are more sophisticated assets, like trusts, annuities and off-shore assets. But you don’t know any of that until you receive all the documents and my experience is that you never get everything you need or it trickles in over a lengthy period of time.

Lawyers bill for their expertise and the time it takes them to complete a task for their client. In this agreement scenario, it would be foolish to quote a fixed fee for ten hours of time, when it may take you twenty hours, or more. Another difficulty is that once the agreement is complete, your client’s partner will take it to her or his lawyer to review and negotiate. That could take two hours or ten hours, because initially you don’t often know who your client’s spouse will retain. One thing lawyers know is the negotiation styles of their colleagues, some lawyers are known to be reasonable, but others are not.

However, the agreement scenario is a piece of cake compared to the living nightmare if you must enter the family justice system, once negotiation and mediation have failed.(Unless of course, you are smart enough to agree to a private arbitration, but that’s another article) If you thought your lawyer was expensive before, this calamity will cost you not only heaps of money but also your emotional and psychological sanity. Where to begin?

After all the negotiations and mediations are at an end, the first thing you’ll have to do is attend a mandatory mediation with a judge, who may or may not be capable of facilitating a settlement. But it’s not like you haven’t already been there, done that. This first step will cost you several thousand dollars and it is not optional in most cases.

Once that has been a complete bust, you enter the nightmare called family law litigation, an experience that frightens even those who are courtroom addicts. The first shock is that you must produce every single piece of paper that has anything to do with the issues in your case, and I mean everything: your kid’s report cards, your kid’s medical records, all paper that is related to your assets and debts, including statements for long-lost bank accounts, credit card statements for the past five years, business records and financial statements, tax returns, and all the damning emails your spouse has sent to you, but that’s just the beginning.

Speaking of emails, most lawyers spend a lot of time reading lengthy email missives from their clients, and also multiple strings of nasty emails between client and his or her spouse, many of which will be producible for court. Hard to predict in advance whether you’ll need to read a hundred emails or several thousand. And don’t forget your lawyer will regularly scour the internet for damaging posts and pictures.

You’ll need to hire appraisers: lots of them, to value your home, your summer cottage, your cars, your boat and trailer, your wine collection, art collection, antique furniture, and your pension. But none of those appraisals will be definitive because your partner will do the same, and if you have a business, you need to set aside $30,000 or more to pay a business valuator. Welcome to the battle of the experts!

Worse than all of that is that when you finally prepare to go to court, you’ll get there and sit in a courtroom all day, only to learn that you have to come back another day, because the judge ran out of time. More delay and more costs because all that work your lawyer did to prepare, must be redone to prepare again, after all, your lawyer has dozens of clients and with even a delay of one week will not remember all the details without another review. You finally get a judge and you learn that you won’t get a decision for weeks, even months.

Tell me honestly, how do you provide your client with an infallible estimate of what it all will cost? That’s right, you don’t, because you can’t.

Lawdiva aka Georgialee Lang

Lawyer Botches Adoption, Sued for Dead Infant

DSC01152_2 (2)_2Rachel and Heidi McFarland were thrilled with their little baby boy, who they adopted as a newborn from the infant’s 15-year-old mother. They loved him and cared for him for two months, but then received advice from their lawyer, Jason Rieper, that their son, named Gabriel, needed to be returned to his mother, Markeya Atkins.

Lawyer Rieper told the Des Moines couple that if they wanted to continue with the adoption he would need more than $10,000, but he didn’t explain to them why the money was needed. Rachel and Heidi were devastated, writing Mr. Rieper a letter indicating their desire to continue with the process. Mr. Rieper responded with a letter outlining Ms. Atkins “troubled youth” and her abuse of drugs. A few days later, Mr. Rieper showed up at the McFarland home, told them they had a slim chance of a successful adoption, and took the child to his birth mother. He advised them that a judge would likely side with the birth mother in any court proceeding.

Within five weeks of Gabriel’s return, he was dead and the child’s father, 17-year-old Drew James Weehler-Smith was charged with first degree murder. What the McFarland’s discovered was that their lawyer had failed to obtain the mother’s signature releasing the baby to the McFarlands, a fact he hid from his clients. They are suing for negligence and also arguing that Mr. Rieper had a legal obligation to advise child protection authorities of the danger of the infant’s return.

Poor little Gabriel, another victim of child abuse.

Lawdiva aka Georgialee Lang

Judge Presides Over Child Support Hearing While Conducting an Affair with Litigant

DSC01152_2 (2)_2If you were the payor father in a child support hearing and you learned that the judge presiding over your case was having an affair with your child’s mother, how angry would you be? How about if you read an email from the judge to your ex, agreeing with her suggestion that you be sent to jail because you’re in arrears of child support?

“I figure if he hasn’t come current by his court date, he gets jail to pay. If he says he can’t bring me the $$, I’ll put him on a tether (electric monitoring) til he brings the receipt…or do “double time”.

You might think this kind of corruption comes from a judge in Russia or Zimbabwe, but you’d be wrong. Judge Wade McCree was, until recently, a judge in Wayne County Michigan, home to two million people, best known for Motown and Motor City, and of late, the 18 billion dollar debt and subsequent bankruptcy of the City of Detroit.

Judge McCree’s judicial career ended ignominiously this Spring when Michigan’s Supreme Court suspended him for six years, after finding his conduct affected not only the litigants involved, but harmed the integrity of the judicial system as a whole.

Initially Judge McCree pulled a “Weiner” by texting a partially nude photo of himself to a female deputy sheriff, and was under investigation by the Judicial Tenure Commission. Rather than minding his “p’s and q’s” while under scrutiny for that indiscretion, he began an affair with Geniene LaShay Mott, who was the complaining party in People v. King, a court proceeding involving the enforcement and collection of arrears of child support against Robert King, who was the father of one of Ms. Mott’s children. He was in arrears of support in the amount of $15,000.

Judge McCree’s offences included:

1. Conducting an affair with Ms. Mott while he was presiding over her child support hearing;
2. Engaging in sexual relations with Ms. Mott in his judicial chambers;
3. Allowing Ms. Mott to access the court house through a rear, private door and utilize the judicial parking lot;
4. Surreptitiously arranging for Ms. Mott’s cell phone to be delivered to her in court by a sheriff so she could call him during the hearing;
5. Texting Ms. Mott from the bench while presiding over other cases;
6. Accepting Ms. Mott’s suggestions as to how he should deal with her child’s father;
7. Giving money to Ms. Mott, as much as $6,000;
8. Lying to the Judicial Commission concerning the date that he ended his affair with Ms. Mott;

But there was even more. Judge McCree presided over People v. Tillman, reducing Mr. Tillman’s bond in another child support case. Tillman was a relative of Ms. Mott’s, a fact known to McCree. And when his affair with Ms. Mott cooled down he lodged a complaint with Wayne County’s Prosecuting Attorney, alleging that Ms. Mott was stalking him and extorting him by demanding $10,000 in exchange for terminating her pregnancy and not revealing the affair and pregnancy to Judge McCree’s wife. In fact, the alleged crimes never occurred.

While Judge McCree’s attorney argued “no harm, no foul”, the judicial panel, comprised of seven judges, disagreed, saying the judge was well aware that his conduct was egregiously inappropriate as evidenced by an email he sent to Ms. Mott:

“Second, you are the complaining witness on a case that is before me. Naturally if it got out that we were seeing each other before your baby daddy’s case closed, everybody would be in deep shit”.

As for the aggrieved Mr. King, he filed a lawsuit against Judge McCree alleging constitutional violations, including the right to equal protection under the law and the right to be treated fairly in legal processes. District Court Judge Avern Cohn ruled against Mr. King finding that Judge McCree’s decisions in King’s case were “judicial acts” covered by “judicial immunity”, a protection that applies even if a judge’s actions are negligent, incompetent, or malicious.

Unfortunately for Mr. King, this week the U.S. Sixth Circuit Court of Appeals endorsed Judge Cohn’s decision while declaring Judge McCree’s behavior “reprehensible”:

“Casual readers of this opinion…may erroneously conclude that…we are somehow endorsing Judge McCree’s conduct or going out of our way to protect one of our own…We do nothing of the sort.”

The Appeals Court also noted that “the best justice possible” was achieved by the Michigan Supreme Court when they suspended Judge McCree for six years.

Is this the end of Wade McCree’s judicial career? Only the people of Detroit can decide that, since Michigan State judges are elected, not appointed.

Lawdiva aka Georgialee Lang

Transgendered Widow Sues for Life Insurance Proceeds

GEO#1It’s over ninety degrees in Texas but it’s going to get a lot hotter. A court battle is heating up over the estate of Thomas Araguz in Wharton, Texas. Araguz, age 30, was a fire captain in the Wharton Fire Department before he lost his life in a blaze on a local chicken farm on July 4, 2010.

Araguz’s life insurance policy of $500,000 should be distributed to his wife of two years, Nikki, and his two children from a previous marriage, however, Araguz’s parents and ex-wife are asking a court to block the distribution and anul Mr. Araguz’s marriage to Nikki Araguz, because she was born male and had sexual reassignment surgery. If that occurs, the children will receive the entire life insurance policy proceeds, presumably to be managed by the children’s sole custodial parent, Araguz’s ex-wife.

The family is relying on a case decided in Texas in 1999 where the court held that same-sex partners cannot marry and the State of Texas does not recognize gender reassignment.

Nikki was born Justin Perdue in 1975 and claims that her husband knew about her gender reassignment and supported her during reconstructive surgery. The problem is that earlier on, Mr Araguz’ ex-wife was challenging Mr. Araguz for custody of their two children and to present the best case in court, both Thomas and Nikki Araguz swore under oath that Mr. Araguz knew nothing about her previous life as a man.

Now Nikki says that they both lied to the court in order to receive a more favourable result in the custody action. Public opinion in Texas is mixed but most people believe the money should go to Nikki. I believe a fair result is the division of the proceeds equally between the two children and Mr. Araguz’ widow.

UPDATE:

In 2011 the Texas Court ruled in favour of the Araguz family and against Nikki Araguz. However, in April 2014 the appeal court reversed the decision and ordered a new trial with a stipulation that Ms. Araguz cannot be prejudiced by her change in gender.

Lawdiva aka Georgialee Lang

Divorce Revenge

_DSC4179 - Version 2A Supreme Court judge in New York recently referred to a divorce litigant as “despicable”. What could possibly garner this strong reaction from an otherwise cool, calm and collected judicial official?

Just before the litigant’s wife filed for divorce, her husband decided to come clean with the tax authorities and filed amended tax returns for 2004 to 2007, disclosing an additional $1.6 million of income from his contracting business.

As a result, he owed the government $1.2 million in taxes, a sum that was coincidentally equivalent to the value of the family home. He also made it very easy for the tax authorities by attaching to his amended tax returns details of the assets he owned, the bank who held the mortgage on the family home, and other pertinent collection information.

The wife was shocked and horrified because the law in New York, as in many other jurisdictions, including British Columbia, provides that a debt incurred during the marriage for the family will be a family debt that is sharable between spouses. Unpaid income tax owed on family income is considered family debt.

The couple had been married for almost fifteen years and had four children.

The New York Supreme Court considered the husband’s evidence of the large family debt and determined that the husband had made the disclosure, not because he was being audited or investigated, but because he wished to cause as much pain as possible to his wife.

The trial judge found that his conduct was malicious and revenge was his motive.

Unfortunately, for this husband, his plan backfired, as the court held that given the egregious circumstances, he would be solely responsible for the debt.

Confucius once said, “Before you embark on a journey of revenge, dig two graves.”

Lawdiva aka Georgialee Lang

Canada’s Shared Parenting Bill Voted Down in Second Reading

GEO CASUALSaskatchewan Conservative MP Maurice Vellacott’s indefatigable efforts to introduce shared parenting into Canada’s Divorce Act has been an exercise in futility, its defeat yesterday an event that is no surprise to its advocates, who eventually realized that none of Canada’s political parties, except for the Green Party, would throw their support behind it. At the end, even the Conservative party, whose platform boasts shared parenting, abandoned Mr. Vellacott, in what was his third attempt to reform the present law.

The gist of Bill C-560 was the introduction of certain “presumptions’ including a presumption that allocating parenting time “equally” between parents is in the best interests of children, rebuttable only by evidence that equal parenting would not”substantially enhance” a child’s best interests.

Vellacott’s proposed law also allowed that current custody and parenting arrangements could be varied taking into account the new “equal parenting” philosophy by declaring the reformed law a “change in circumstance”, a legal requirement under the present Divorce Act to amend an existing custody order or agreement.

Critics of the bill complained that a presumption of equality does away with the tried and true “best interests of the child” test and elevates parental rights over the rights of children. They also resist the notion that parents across Canada may invoke the new law to reopen their custody orders and agreements, potentially leading to a landslide of fresh litigation.

Was the bill so flawed that its failure was inevitable? In my opinion, it was not, but it did contain a “trigger” that unsettled those who still believe shared parenting is merely a ploy of the father’s rights movement to reduce or eliminate child support payments.

One of the triggers was the use of the term “equal” which brought back the early days of the Child Support Guidelines, which provided that parents who had custody of their child 40% of the time or more, could bring an application to reduce their child support payments, based on the reasonable proposition that their own costs in caring for their child were increased and thus, their counterpart parent’s costs reduced.

Judges became arbiters of whether 40% included school hours; hours when the children slept; and other mathematical conundrums raised by parents seeking to assert or deny the 40% rule. Fear that these arguments would be resurrected cannot be understated, however, lawyers and litigants soon learned that few judges were prepared to accede to child support reduction applications.

But more importantly in the context of shared parenting, a fully involved parent is not necessarily a parent who can or should insist on perfect equality, in fact in many of the jurisdictions that have implemented shared parenting, lawyers, parents, and legislators have recognized that precise equality is not achievable, typically because parents’ and children’s schedules are incapable of being sliced in half.

What ought to be paramount is a cultural switch that emphasizes that children need both parents in their lives, and that, in and of itself, is in a child’s best interests, despite society’s increasingly male-absent procreation and child-rearing agendas. Outdated research that celebrates maternal preferences is no longer valid, but try telling that to Canada’s lawmakers.

Lawdiva aka Georgialee Lang

Lawyers Behaving Badly

49afd8240a58bf0fb97d4a86105572c1I’ve been told that sociopaths have three favorite occupations: practicing law, running large companies/CEO’s or holding government office/politicians! It’s a joke, but I’m sure more than a few people would agree. This week two “bad” lawyer articles came to my attention, thus my title “Lawyers Behaving Badly”.

The first is Fort Wayne Indiana lawyer James Allen Hanson, age 41, who in a fit of pique penned a Facebook message to the ex- husband of his matrimonial client, Nachole Mevis. Hanson was acting for her in respect of her divorce and in regards to an assault charge she faced where her former husband was the victim. It’s not clear why Mr. Hanson was so riled up, although media reports indicate his client was in jail for domestic assault. The message he sent read:

“You pissed off the wrong attorney. You want to beat up women and then play games with the legal system…well then you will get exactly what you deserve. After I get Nachole out of jail. I’m going to gather all the relevant evidence and then I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little (expletive). I’ve got you in my sights now.”

Ms. Mevis’ former spouse, Chad Vice, contacted the police and attorney Jim Hanson was arrested and charged with felony intimidation, admitting that he sent the message to Mr. Vice while protesting that Mr. Vice gave as good as he got.

Meanwhile in Philadelphia Pennsylvania another lawyer came off the rails. Francis Malofiy brought a copyright infringement lawsuit against pop star, Usher, and nineteen other defendants in regards to Usher’s song, “Bad Girl”. In the course of representing his client, Dan Marino, Mr. Malofiy was described by trial judge Paul S. Diamond as “a paradigm of bad faith and intentional misconduct”, an unflattering portrait that was close to an understatement.

In a pretrial discovery/deposition of a certain witness, attorney Malofiy was deliberately abusive and obstructionist, making lengthy, baseless objections. He was also rude and sexist. In one exchange with defendant’s counsel he said “Don’t be a girl about this..” Opposing counsel responded “I would appreciate you not referring to me as a girl, which you have done repeatedly on the record and off the record.”

He continued to volley insulting and intimidating comments including:

“Counsel you’re defending thieves and you’re acting like somebody who should be hanging out with them at this point”

“You coached him to hell and the Judge came out and slammed you. Slammed you!”

“You’re like a little kid with your little mouth”

During one deposition Mr. Malofiy’s behavior prompted this response from the deponent:

“And for the record I’d like to say that I feel menaced and threatened by Mr. Malifiy and his continual outbursts and seemingly anger-driven conduct today.”

In a written submission to the court Mr. Malofiy addressed his argument “Response in Opposition Re: Joint Motion for Sanctions by Moving Defendants Who are Cry Babies.” The content of the argument included such brilliant points as “this is hogwash and claptrap”; “defence counsel are lying through their teeth”; “defence counsel is bizarre, off-kilter, absurd and professional complainers”.

Even worse than Malofiy’s abusive tongue, however, was his conduct in misleading an unrepresented defendant to believe he was merely a witness and was not being sued, behavior which drew the court’s most rigorous criticism. Mr. Malofiy defended himself by saying that he was a relatively unexperienced lawyer who needed a mentor to help him, protestations that were met with disdain from the court, who sanctioned him, leaving more stringent discipline, including disbarment, to be determined.

Two more reasons why lawyers are often branded as bullies!

Lawdiva aka Georgialee Lang