Family Law Lawyer Creates Fake Accounts for Opposing Counsel

GEO CASUALTwo busy family law lawyers in Illinois, Michelle Mosby-Scott and Drew R. Quitschau spent hours sparring in court as opposing counsel on dozens of cases.

However, their professional relationship became complicated, even sinister, when Ms. Mosby-Scott learned her colleague had set up a false Match.com account in her name, describing her as separated from her spouse, an agnostic, and a fan of grocery stores, all restaurants, the Pizza Ranch, and buffets.

Ms. Mosby-Scott obtained a court order compelling Match.com to provide her with the details of the IP address related to the fake account, which led to Mr. Quitschau’s doorstep.

He had also downloaded photos from Ms. Mosby-Scott’s law firm website and added them to her Match.com account.

But he didn’t stop there. He created false accounts in her name with the Obesity Action Coalition, Pig International, Auto Trader, Diabetic Living, and Facebook, not to mention posting negative reviews of her legal skills on martindale.com and lawyers.com.

As a result she began receiving harassing emails and phone calls from these organizations.

When approached by Ms. Mosby-Scott and the managing partner of his law firm, Mr. Quitschau denied any involvement but an IT expert was retained who confirmed that Quitschau was lying. He was immediately fired from his law firm partnership.

Ms. Mosby-Scott obtained a restraining order against Mr. Quitschau and his conduct is the subject of a pending hearing before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission. Ms. Mosby- Scott remains mystified as to Quitschau’s motive, conduct which caused serious emotional distress for her and her family.

Lawdiva aka Georgialee Lang

Zealous Advocacy or Abuse of Process?

GEO CASUALThis week two Vancouver lawyers were excoriated by a Supreme Court Justice because of the tactics they employed in a case involving the proposed adoption of a young Metis child, referred to as SS. (A.S. v. British Columbia (Director Of Child, Family and Community Services),2017 BCSC 1175)

Lawyer JH represented foster parents who were desperate to retain custody and adopt the young child, while lawyer NG represented the biological parents, who supported the claims of the Metis foster parents. Their mutual nemesis was the Director of the Ministry of Child, Family and Community Services who determined the child, born in 2013, should be placed for adoption with a non-Metis Ontario family who had already adopted the child’s two siblings.

The court battle was hard fought involving multiple and duplicate actions and subsequent appeals, however, the lynchpin of Madam Justice Fisher’s damning findings against lawyer JH centered on a settlement letter JH sent to the Ministry, threatening to disclose a recording of an interview between Ministry social workers and the child which he said would show that the social workers had perjured themselves in their evidence in court. HH wrote:

“This is critical information which should be made available to Madam Justice Dickson, the panel hearing the appeal, and every subsequent Justice hearing any further matter in these and all related proceedings. Should the contested litigation continue, appropriate sanctions may be appropriate against the 3 social workers and the Director.

I have instructions from my clients, counsel for the birth parents, and the President of the BC Metis Federation, that if the Director is prepared to consent to my clients adopting S.S. by 10:00 a.m. this Wednesday, September 7, 2016, my clients, the birth parents and the BC Metis Federation are prepared to discontinue all legal proceedings, with the exception, of course, of the finalization of the adoption, and will enter into comprehensive releases involving all of the parties with respect to any and all possible legal outstanding matters.”

Despite repeated requests by the Ministry, JH refused to produce the alleged tape, a tape that if it existed was of questionable origin since the social workers had not recorded the meeting. If a recording existed it could only have been done surreptitiously by the unwitting child.

Madam Justice Fisher found that JH and NG had become blinded by their zeal to obtain custody for the foster parents ignoring that the Ministry could only settle the case if it was in the child’s best interests. To accept JH’s proposal would be a dereliction of their duty to act only in the best interests of their wards. A settlement to avoid scandal, the purported perjury, would be unconscionable. Madam Justice Fisher characterized JH’s conduct as a form of blackmail.

Lawyer NG was chastised for an email he sent accusing a Ministry lawyer of conduct that was “totally outrageous”,”totally unreasonable” and of a pattern of behaviour that showed “utter disrespect for the Court and to counsel”. He then threatened to report the alleged misconduct to the Law Society of British Columbia, apparently forgetting that while counsel may report another lawyer’s conduct, it is inappropriate to threaten to do so. One reports or not, but threats to report are sacrosanct.

The Court found that the lawyers’ conduct, which also included advancing inconsistent versions of their clients’ claims and unreasonable delay tactics was worthy of rebuke in the form of an order that each pay special costs to the Ministry for their egregious conduct, a rare sanction from the court. It is commonplace to order that a litigant pay costs but to order a lawyer to be responsible personally for costs is highly unusual and it is even scarcer to see a judge order special costs, which is typically 90% of the actual costs of the litigation.

The Reasons in this case illustrate that while lawyers should advance every legitimate argument in favour of their client, if they become enmeshed in their client’s cause they may lose objectivity and the perspective required of them. Following a client’s instructions will not protect an overzealous lawyer who is expected to control heated litigation as both an effective advocate and an officer of the court.

It is important to note that both JH and NG retained lawyers to represent them at the hearing where special costs were imposed and I predict that each lawyer will appeal the ruling of Madam Justice Fisher.

Lawdiva aka Georgialee Lang

17 Years in Prison for Divorce Fraud

BarristerCalifornia businessman Steven Zinnel, age 50, thought he could get away with cheating his wife, his two teenage children, and the bankruptcy court, but he was wrong….boy was he wrong!

Zinnel and his wife, of Gold River, separated in 1999. By 2001 their uncoupling got even more ugly when he told his wife she would get nothing, no assets or support because he was filing for bankruptcy.

Zinnel systematically funnelled millions of dollars into the names of other persons and true to his word, filed for voluntary bankruptcy in 2005. He also laundered money through shell corporations in order to conceal his true income.

Shockingly, he did all this with the assistance of lawyer, Derian Eidson, age 50, who used her trust account, her personal account and a corporation she owned to return the funds to Zinnel after his discharge from bankruptcy.

But he didn’t stop there…Zinnel went on to initiate an FBI investigation of his ex-wife, displaying a hatred that knew no bounds and that eventually led to his own demise.

In the course of the investigation, authorities uncovered Mr. Zinnel’s bankruptcy and divorce fraud. Before U.S. District Court Judge Troy Nunley he was sentenced to 17 years and eight months in prison, fined $500,000, and ordered to disgorge the sum of $2.8 million to the state.

Judge Nunley in bankruptcy court and the 3rd District Court of Appeal in respect of his divorce matter condemned Zinnel for his narcissistic arrogance, and found that while he was articulate and charismatic he used those traits for his own selfish purposes.

Yorba Linda lawyer Ms. Eidson, was disbarred and sentenced to 10 years and one month in prison for money laundering. She was also fined $200,000. Her undoing began when she commenced an intimate relationship with Zinnel and became a victim of her own greed.

As for Mr. Zinnel, his phone call to his son when first imprisoned shows that he still doesn’t get it…he told his son that he was “railroaded” and blamed his ex-wife!

Lawdiva aka Georgialee Lang

Supreme Court of Canada Refuses to Hear Lawyers Who Argue “Gonzo Logic”

GeorgiaLeeLang025While President Trump’s opponent are having a large-scale melt-down over his recent appointments, perhaps the most consequential of these appointments is his nomination of Justice  Neil Grosuch to replace the late Justice Scalia on the United States Supreme Court.

But lest you think that Canada’s judicial appointments lack the intensity and angst of our American friends, you need only refer back to Prime Minister Stephen Harper’s appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada in 2013.

You may also recall that Ontario lawyer, Rocco Galati, challenged Mr. Harper’s appointment by filing a lawsuit against Mr. Harper, the Governor-General, Justice Nadon, the Attorney-General, and the Minister of Justice, which undoubtedly prompted the government’s prompt action to have the Supreme Court of Canada issue a ruling on Justice Nadon’s eligibility for our highest court, this after he had already been appointed.

The argument against his appointment was that Mr. Justice Nadon, as a  Federal Court judge, was not qualified to represent Quebec on the Supreme Court of Canada, despite his long tenure as a lawyer in Quebec.

The eventual outcome confirmed Mr. Galati’s position that Judge Nadon was not eligible, a surprise to the Harper government who had contrary opinions from two retired Supreme Court of Canada justices and several constitutional experts.

Most of this has been long forgotten by Canadians, but Mr. Galati’s 2016 application to the Federal Court of Appeal to be paid $800.00 per hour by Canadian taxpayers for his legal work in bringing this challenge has brought this case back to media scrutiny, particularly in light of the Supreme Court of Canada’s decision this week to refuse to hear the case.

Mr. Galati claimed the sum of $51,706.00 and his co-counsel, Paul Slansky, wished to be paid $16,769.oo, again at a rate of $800.00 per hour.

Both counsel admitted that this is not the hourly rate they normally charge, but this amount reflects their years at the bar and their expertise, a proposition that was soundly rejected by the Federal Court of Appeal in their Reasons.

The Court found that Mr. Galati’s and Mr. Slansky’s request for full indemnity for their legal services, called “special costs” was unwarranted for a variety of sensible reasons. For starters, their litigation did not decide the outcome of the Nadon issue, as shortly after they filed their action, the Supreme Court of Canada stepped in, thus ousting their private action. They were not successful litigants.

As well, “special costs”are only awarded when the opposing litigant’s behaviour has been egregious, even outrageous. Short of that, a costs tariff comes into play, a tariff that is far from reimbursement for all legal costs. Additionally, Mr. Galati and his colleague were representing themselves and were actually in-person litigants, not entitled to costs.

The Federal Court also remarked that experienced counsel would know that if costs were to be awarded, the tariff rules would govern. But the court’s ire was raised in response to Mr. Galati’s argument that the constitution supported his request for special costs and that to deny his claim was to be evidence that the Federal Court was “in bed” with the federal government.  To this audacious statement the court replied:

“It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.”

The Court found that Mr. Galati’s  allegation of collusion between the court and the government was “reminiscent of the Gonzo logic of the Vietnam War era, where entire villages were destroyed to save them from the enemy…this argument deserves to be condemned without reservation.”

Regrettably, it is cases like this that lower the reputation of lawyers to right-thinking members of the Canadian public. But “gonzo” aptly describes arguments that are “weird, eccentric and crazy”.

Lawdiva aka Georgialee Lang

 

 

 

 

Should Lawyer Who Has Sex With His Client be Disbarred?

It is common knowledge that a doctor who enters into an intimate relationship with his/her patient will typically lose his license to practice medicine. But what about lawyers? Is a sexual relationship between a lawyer and his client considered a punishable ethical breach? Is it a conflict of interest and should it warrant disbarment?

The story of Ontario lawyer Anthony Macri provides some insight into this delicate subject. Mr. Macri was acting in a family law case for a vulnerable stay-at-home mom with two young children. She found herself without financial resources to defend herself against her husband’s litigation tactics, which included allegedly vandalizing her personal property.

Falling for a “damsel in distress”,  Mr. Macri began a consensual sexual relationship with his client, a coupling that both hoped would continue after her family law matters were completed. During the course of their romantic trysts, Mr. Macri loaned his client $60,000 to cover her legal fees and personal expenses. She promised to pay him back from her share of the sale proceeds of the family home.

Eventually her home sold, but she refused to reimburse Mr. Macri for the loan. That is when their relationship turned ugly. Mr. Macri retaliated by sending threatening emails and text messages to his former lover saying “You don’t want to screw me over like this. Your case isn’t over. You still need me.” Other messages suggested that Mr. Macri would divulge personal information to her husband.

Not surprisingly, Mr. Macri ‘s lover reported their relationship to the Law Society of Ontario, and was called upon by them to address the issues raised by his clandestine relationship. The hearing tribunal found that Mr. Macri’s behavior in both acting for his client and sleeping with her was a conflict of interest. His loan to her, which he did not disclose to his law firm was the basis for their finding that Mr. Macri lacked integrity, and his inappropriate and abusive emails to her constituted dishonourable conduct.

While physicians who engage in sexual activities with their patients are subject to removal from their profession, there is no similar policy with respect to lawyers.

Lawyer Macri was fired by his law firm; suspended from the practice of law for two and a half months, and fined $2,500 with additional costs of $2,000 payable to the Law Society.

Should lawyers have the same ethical edicts as doctors in Canada? University of Ottawa law professor Adam Dodek was quoted in the “Toronto Star”, saying:

“Lawyers who have sex with their clients should be subject to a mandatory penalty of disbarment, the ultimate penalty that law societies can impose on lawyers. It is surely time to revisit the issue in the public interest.”

Side note: Was Mr. Macri repaid the funds he loaned? No.

Lawdiva aka Georgialee Lang

Incompetent Lawyer is Grounds for New Trial: Or is it?

GeorgiaLeeLang009You have surely heard the time-worn adage “You get what you pay for”? Often that is true, but not always.

The decades-long investigation into the death of 15-year-old Martha Moxley of tony Greenwich, Connecticut in 1975 ultimately led to the  2000 arrest and  2002 conviction of Michael Skakel, infamous as a Kennedy cousin.

Over the years, Skakel, with the help of cousin Robert Kennedy,  battled to reverse his conviction, but was largely unsuccessful until 2013 when he persuaded Mr. Justice  Thomas Bishop of the Connecticut Superior Court to overturn his conviction, based on the incompetence of his trial lawyer.

Skakel’s trial lawyer was no junior schlep, but celebrity attorney Mickey Sherman whose reputation as a skilled, albeit flamboyant criminal counsel, was well-established.

Sherman’s successful law career was fast tracked when he became a legal commentator and analyst for  MSNBC, CNBC, HLN, Fox News, CBS, and CNN.  But his courtroom prowess took a huge hit after representing Michael Skakel in his  2002 murder trial.

Skakel’s new counsel argued that attorney Sherman spent more time basking in the limelight and charming the media than putting his mind to an aggressive, comprehensive defence of Mr. Skakel. From the outset, it was Michael Skakel’s older brother, Tom, who was suspected of sexually assaulting and beating neighbour girl Martha Moxley  with a golf club.

He was a plausible suspect who had a history of  emotional instability, anger and violence and  had admitted to consensual sexual relations with Martha on the night she died. Ms. Moxley’s diary confirmed an ongoing sexual tension between her and Tom Skakel.

Another young man, Ken Littleton,  who  worked as a tutor for the Skakel family and lived with them, also attracted the attention of police investigators. In finding that Mickey Sherman did not properly defend his client,  Judge Bishop noted Mr. Sherman’s failure to argue that either or both of these suspects was the more likely perpetrator, introducing an element of reasonable doubt, was a serious error.

Skakel also had an independent alibi witness that Mr. Sherman did not call to testify. Sherman advised the court that he had not been told about this witness, however, if Mr. Sherman had read the transcript of the  grand jury hearing he would have known.

A particularly strong prosecution witness was vigorously cross-examined by Mr. Sherman,  who  later bragged of his decimation of the witness, but Sherman failed to call witnesses who could  actually impeach his testimony.  Mr. Sherman’s excuse was that they couldn’t be found, although later Skakel’s appellate counsel easily located them.

Among the  litany of instances of ineffective assistance of counsel was Mr. Sherman’ s acceptance of two jurors who Mr. Sherman could and should have declined to seat on the jury panel.

The first was a police officer who knew Mr. Sherman and was a motorcycle buddy of one of the investigating officers.  The juror reminded Mr. Sherman that he had effectively defended a client who had assaulted the juror and had on another occasion angered this juror’s wife when he aggressively cross-examined her in another case.

The second juror that Sherman should not have approved was a woman who admitted that her good friend’s mother knew Martha Moxley’s mother. She said she thought it would be a little awkward for her to explain an acquittal to her friend and that she might feel defensive about an acquittal, given the friendship with Mrs. Moxley. She also indicated that a friend’s father had been murdered and she testified that it could be difficult for her, as a juror, to separate herself from feelings that might arise because her oldest child and Ms. Moxley were the same age. Shockingly, Mr. Sherman saw no reason to eliminate these jurors from the panel.

Yesterday a new page in this murder mystery was written when the Connecticut appeal court overturned Judge Bishop’s  judgment ending Mr. Skakel’s short-lived freedom. The court found that attorney Mickey Sherman, despite accusations to the contrary, represented him effectively and thus earned his $1.2 million dollar legal fee.

No doubt further appeals will follow.

Lawdiva aka Georgialee Lang

Why Would You Hire a Lawyer if You Don’t Want to Take Their Advice?

BarristerI could never understand why someone would hire a high-priced, hotshot lawyer but refuse to take their advice.  It happens more frequently than you might realize, sometimes the result of an uneducated neighbour or friend, who after going through their own divorce, deigns to give (bad) advice to all who will listen. Other times it’s a litigant who thinks he or she knows better.

In a recent case in Vancouver, a lawyer had a difficult time persuading her client that his strategic decisions were wrong-headed and would ultimately lead to disaster. Here’s what the lawyer told her doubting client:

“Family law is a breed apart. Affidavit evidence is generally full of crap, most of which doesn’t matter. ” (Editorial comment: A true statement)

“…if you bring numerous expensive court applications that are out of the ordinary in family law in response to her material, you can guarantee she will get her advance for legal fees because you will have proved to the court what she has said in her material that you will seek to prolong the court proceedings by litigation tactics that are outside the norm in family law and not only will they be unsuccessful, those tactics will backfire spectacularly.” (Editorial comment: Also true)

“You might be better served with a puppet lawyer than with someone who is trying to save you money and grief. Think about it, as once you start down this type of path, you have blown your potential opportunity to get this litigation over with relatively easily.” (Editorial comment: A puppet lawyer is a stooge, a dupe)

“We won’t fire you now because you are stuck with a rapidly approaching court date but (John) or (Jane) will have to argue the motions you want to argue that I think are a waste of time and money, as my reputation as ethical counsel with the court and other lawyers is important to me and I don’t want the court or other counsel to think I am suddenly trying to rip off my clients by bringing motions that appear to be designed to make me money and not to help my clients.” (Editorial comment: Lawyers cannot abandon clients if a hearing is pending)

Tough words, but ethical lawyers who see their clients heading in the wrong direction are obliged to point out the crash course they are on. Most often the solicitor/client relationship ends dramatically, with unpaid legal bills and complaints to the lawyer’s governing body. (Editorial comment: Most times these complaints are dismissed)

To you who hire lawyers, you’d be wise to remember that the legal system is a  complex maze that requires  a steady hand at the wheel, a driver who has the expertise you need and the interest and passion to pursue justice on your behalf. Of course, in all litigation there are winners and losers, and competent counsel should tell you what side you will likely land on.

Lawdiva aka Georgialee Lang