Tough Talk With Judges: Dore v. Barreau du Quebec

The Canadian courtroom is not a venue for the faint of heart. It is “ground zero” for our adversarial system of justice, pitting the state against a criminal accused; corporate titans battling competitors; spouses jousting to establish a fair division of the spoils of their marriage; and average citizens seeking redress for motor vehicle accidents, human rights complaints, estate disputes and so many other legal matters that are part of everyday life.

“See you in court” is a threat that is feared by most people, with the exception of trial lawyers, who have studied, practiced and for the most part, crave the adrenalin pumping through their veins, like gladiators entering the arena.

In hard-fought cases, clients expect their lawyers to champion their cause aggressively with a “take-no-prisoners” zeal. Many trial lawyers are proud to be called “a bulldog, a bruiser, a basher, a pit-bull” and other normally unflattering nicknames.

Within this milieu it is inevitable that advocates will lock horns with opposing counsel, and judges and lawyers will occasionally spar with one other. However, there is a fine line between passionate argument and unchecked invective when the heat in a courtroom accelerates.

In a 2012 decision from the Supreme Court of Canada, Dore v. Barreau du Quebec, lawyers and judges alike have been provided with guidance on courtroom etiquette that balances an advocate’s duty to aggressively defend a client, with their obligation to maintain professional decorum.

Quebec lawyer Gilles Dore was representing an accused in a criminal matter involving a Hells Angels prosecution before Quebec Superior Court Justice Jean-Guy Boilard. During Mr. Dore’s submissions, Judge Boilard chastised Mr. Dore, saying “an insolent lawyer is rarely of use to his client”, and later criticized Mr. Dore for his “bombastic rhetoric and hyperbole” and dismissed his “ridiculous” application.

After the hearing Mr. Dore delivered a scathing letter to Judge Boilard, calling him a “coward…pedantic…aggressive…petty… arrogant… unjust…that he was of dubious legal acumen” and made “shamefully ugly, vulgar and mean personal attacks on the unsuspecting”.

Mr. Dore also wrote the Chief Justice of the Quebec Court and the Canadian Judicial Council about Judge Boilard’s behavior.

Canada’s Judicial Council determined that Judge Boilard’s remarks were “insulting and unjustifiably derogatory…displaying a flagrant lack of respect for an officer of the court”. The Council also reviewed Judge Boilard’s track record and noted he had “a penchant for leveling personal, denigrating attacks against lawyers”.

Judge Boilard responded by removing himself as trial judge on the Hells Angel’s trial, while Mr. Dore was defending himself against a complaint made to the Barreau du Quebec, who ultimately found that his letter to Judge Boilard was “likely to offend and was rude and insulting”. Mr. Dore had his license to practice law suspended for 21 days. His suspension was upheld by the Quebec trial and appeal courts.

Canada’s highest court in a 7-0 decision, agreed with the lower courts, but held that judges are not fragile flowers unable to withstand withering critiques from lawyers who argue before them.

Madam Justice Rosalie Abella said “Lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.”

Judge Abella also recognized the conundrum lawyers face when provoked by opposing counsel or members of the bench noting, “…it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility.”

This case is important, not only for addressing the difficult topic of conflict between counsel and the Court, but also in providing a framework for lawyers and other players in the justice system to understand the boundaries when speaking out about flaws in the system they work in.

While lawyers enjoy freedom of expression, their words must still be chosen wisely in order to balance their obligations to their clients, with the professionalism required of them by their governing bodies and the public.

Lawdiva aka Georgialee Lang

Lawyers’ Christmas Card Greetings

Just for fun, I’ll set out the sentiments from a few lawyers’ Christmas cards:

1. Picture an intense lawyer grilling Santa Claus on the witness stand:

“I’ll ask you again sir, did you or did you not look at my client, and in a crowded shopping mall, in front of her children, call her not once, but three times… a ho?”

2. A lawyer making closing submissions in court:

“The evidence will clearly show that my client, Mr. Claus, was not the driver of the sleigh the night that Grandma, as the charges read, “got run over by a reindeer”.

3. This time it’s a sleigh full of reindeer being pulled by Santa Claus:

“Our lawyers sure know how to negotiate an employment contract.”

4. Husband reading a Christmas card to his wife:

“Honey, our lawyer wishes us, but in no way guarantees a Merry Christmas”

5. Child sitting on Santa’s lap in a department store:

“Actually my legal counsel has advised me to plead the 5th with respect to “naughty or nice”.”

6. Santa standing outside the front door of a home on Christmas Eve
with his lawyer:

“My client would like you to sign this waiver before he descends your chimney.”

7. A lawyer sitting on Santa’s lap in a department store, reading his Christmas
wish list:

“Sympathetic judges, evidence that is irrefutable, friendly juries, no hostile witnesses.”

8. Young boy sitting on Santa’s lap in a department store:

“As to your question “Were you a good boy?”, my attorney tells me I have the right to remain silent.”

MERRY CHRISTMAS!

Lawdiva aka Georgialee Lang

Political Correctness Leads to “Merry Christmas” Laws

GEO_edited-1Texas governor Rick Perry signed a new law in 2013 called the “Merry Christmas” law. The new law protects Christmas and other holidays in Texas’ public schools from legal challenges.

The law was initiated when Representative Dwayne Bohac learned that his son’s school had erected a “holiday” tree, as the word “Christmas” was banned in the school for fear of attracting litigation. Mr. Bohac remarked that the exclusion of any reference to Christmas at public schools was “political correctness run amok”.

The Christmas controversy, called the “War on Christmas” by Fox News’ Bill O’Reilly, has taken a variety of forms.

In 2005 the City of Boston erected a “holiday tree” that incensed the Nova Scotia farmer who supplied the tree to Boston. He said he would rather put the tree in a wood chipper than put up with misguided political correctness.

Nativity scenes were barred in public schools in New York in 2002, a position that prevailed when the public school authorities were sued.

In 2007 a public school in Ottawa caused alarm when the word “Christmas” was excised from the school choir’s rendition of “Silver Bells” and replaced with the word “festive”. A few years later another public school in Ontario cancelled their Christmas concert and replaced it with a winter craft fair and concert in February.

Major American big-box chain stores have also been subject to criticism. Sears, Home Depot, Kmart, Target, Walmart, and others who left out the word “Christmas” in their marketing material acceded to pressure from customers and Christian lobby groups to reinstate the name of the religious statutory holiday.

Meanwhile Texas has led the way for “Merry Christmas” laws in Alabama, Tennessee, and Missouri with bills awaiting enactment in several other American states.

As for me, I say both “Merry Christmas” and “Happy Hannukkah”.

Lawdiva aka Georgialee Lang

Bill Cosby Plays the Race Card

BarristerLet me put my cards on the table. I never did like Bill Cosby, didn’t think he was funny, and wondered why everyone went ga-ga over him, especially Oprah.

However, I never dreamt in a million years that he was a long-term sex offender, and yes, I believe the accounts told by every victim that has come forward.

I was shocked when Janice Dickinson described what happened to her and will willing to suspend belief, based on her history of drug and alcohol abuse. But when I read 1970’s top black model, Beverly Johnson’s article in the December 2014 Vanity Fair this week, I was overcome with anger and sorrow that this man who was lauded and honoured was an unrepentant rapist.

I didn’t know that he had settled a civil sexual assault case several years ago and had not heard that multiple women had come forward to be witnesses in the civil trial. I sure do understand why he settled the case… a trial would have been pubic, as would the evidence of the parade of thirteen female victims who were prepared to testify that they too had been drugged and assaulted by him.

Cosby has refused to make a public statement until yesterday when he said:

“Let me say this. I only expect the black media to uphold the standards of excellence in journalism and when you do that you have to go in with a neutral mind”.

Yes, Cosby is suggesting that ‘whitey” won’t give him a fair shake…a ridiculous suggestion from a man who thrived in the institutions and bastions of white America, from the University of Massachusetts at Amherst to Temple University, from the Playboy Mansion to overwhelmingly white Hollywood.

Journalists, of every race and colour, report the news. The news about Cosby is that as many as 37 women have come forward with allegations that all sound the same: Cosby drugged and assaulted them.

His wife of many decades, Camille Cosby, also spoke out yesterday saying that the man who has been described in the nation’s newspapers is not the man she knows. On that count I’d say she is correct.

Bill Cosby has managed to fool everyone!

Unlike Canada, where criminal charges can be filed in historical sexual abuse cases, America has a statute of limitations which means that after a certain date, no criminal charges can be filed against Cosby.

Here’s hoping that the civil lawsuit filed against Cosby this week will start a landslide of civil actions.

For all his fame and fortune, Cosby is by all accounts, an abusive, nasty man, the details of which will become clearer as the civil suits proceed. Of course, with the millions Cosby has it would not surprise me if he threw enough money at his “problem” to make it go away, like he did in 2006.

Lawdiva aka Georgialee Lang

Hollywood’s Take on Divorce

DSC00567 - Version 2Today’s post looks at the lighter side of divorce and separation with a review of my top three “divorce” movies. And the winners are….

1. The War of the Roses

Who can forget the outrageous antics of Michael Douglas and Kathleen Turner as the warring Roses, in this black comedy directed by Danny De Vito, who also plays a divorce lawyer in the film.

The Roses are a wealthy, sophisticated couple who despite appearances, hate one another. After Mrs. Rose asks for a divorce she advises her husband she will never leave her home and refuses to acknowledge that he has an equal interest in it.

With each refusing to move out, the couple live together in a state of unarmed warfare. To spite each other, they destroy most of the home furnishings and smash Royal Doulton china and Waterford crystal against the walls.

When Mr. Rose “accidently” runs over his wife’s cat, she retaliates by nailing the door of the sauna shut while he is in it. He nearly succumbs to heat stroke and dehydration.

As matters escalate, Mrs. Rose rigs their large hallway chandelier, hoping that it will fall on her husband, thus eliminating her problem. There is a surprise ending that I will not give away.

This 1989 film grossed $150 million at the box office and won three Golden Globes: Best Actor, Best Actress and Best Movie.

2. The First Wive’s Club

This 1996 comedy features Diane Keaton, Goldie Hawn and Bette Midler as three middle-aged wives who are dumped by their husbands in favour of younger women.

The three form a club vowing to wreak havoc in their ex-husbands’ lives and exact revenge. Goldie Hawn plays an aging actress who is a plastic surgery addict; Diane Keaton is an anxious neurotic with a lesbian daughter; and Bette Midler is a capable Jewish wife who sacrificed herself for her husband’s successful business.

The film has a great soundtrack including Dionne Warwick’s “Wives and Lovers”, Janis Joplin’s “Piece of My Heart”, Gloria Gaynor’s “I Will Survive”, and Lesley Gore’s “You Don’t Own Me “.

Who can forget Ivana Trump’s cameo line “Don’t get mad, get everything!”

The film was a winner at the box office and helped revive the careers of its
three leading ladies. It was based on the novel of the same name written by Olivia Goldsmith, who died several years later during a facelift procedure.

3. Mrs. Doubtfire

Robin Williams plays a father, Daniel, with a lagging acting career, who loses his job, his marriage and his three kids. His wife, played by Sally Field, has a new boyfriend (Pierce Brosnan) and sole custody of the children. Daniel is given access to his children once a week on Saturday nights.

Desperate to see his kids, he notices that his wife is advertising for a nanny. With the help of his brother who is a film makeup professional, Daniel transforms into British nanny Mrs. Doubtfire.

The film is hilarious. Eventually the two oldest children realize Mrs. Doubtfire is their father and go along with the scam.

The “happy ending” includes Daniel on his own children’s television show playing Mrs. Doubtfire and his wife’s recognition that he is really a great dad.

The film was the second highest grossing film of 1993 only outstripped by Jurassic Park. It won an Oscar for Best Makeup and Golden Globes for Best Actor and Best Picture.

What are your favourites?

Lawdiva aka Georgialee Lang

DISBARRED- THE SERIES: F. LEE BAILEY

10950859361151CDPSome lawyers achieve international recognition whether through their representation of high-profile clients, their legendary oratory skills, or their transition from law to politics.

We live in a culture that idolizes the successful and the famous and yet as Phaedrus the Roman fabulist said “Success tempts many to their ruin.”

This aphorism is nowhere truer than in respect of some of Canada and America’s most celebrated lawyers. Lawyers held in the highest esteem for their skill and knowledge, but eventually stripped of their credentials and barred from the practice of law.

The first subject in this series on disbarred lawyers is F. LEE BAILEY:

Bailey was a criminal defence lawyer and legal superstar known for his representation in 1965 of the Boston Strangler, Albert deSalvo. DeSalvo was convicted of numerous sexual assaults but never tried for the strangulation deaths of thirteen women, despite the confession he made to Bailey.

He also represented Dr. Sam Sheppard in 1966 on appeal from his murder conviction in the death of his wife. Sheppard’s “bushy-haired stranger” defence failed at his first trial, however, his appeal to the United States Supreme Court succeeded on the basis that Sheppard’s trial resembled a “carnival” and was tainted by non-sequestered jurors and the trial judge’s public declaration: “Well, he’s guilty as hell. There’s no question about that”.

Sheppard was acquitted at his second trial after serving ten years of his sentence. The Sheppard case was said to be the basis for the popular television series “The Fugitive” with David Janssen and the movie with Harrison Ford.

Other high-profile clients included Dr. Carl Coppolino, convicted in the death of his wife, Patty Hearst of Symbionese Liberation Army notoriety, Captain Medina for his 1971 My Lai Massacre court martial and O. J. Simpson.

Many pundits say that it was Bailey’s cross-examination of Mark Fuhrman that sealed Simpson’s acquittal.

In 1994 Bailey and ROBERT SHAPIRO acted for Claude Duboc, an international drug trafficking kingpin extradited to Florida. Part of Duboc’s plea deal was that he would turn over all his assets to the federal government. These assets included stocks in a Canadian company called Biochem valued at $6 million. By the time the government moved to recover Duboc’s assets, the stock had increased in value to $14 million. Bailey had previously placed the stock in his account and used it as collateral for personal loans. He also used the interest on the investment to finance his expensive lifestyle, claiming that the stocks were payment for his legal fees. He refused to turn the stock over to the government.

Bailey was censured by the Florida Supreme Court and served six weeks for contempt of court. He eventually reimbursed the government almost $20 million. In 2001 he was disbarred by the State of Florida for five years and ordered to close his practice within 30 days. The State of Massachusets removed Bailey from their roll of licensed attorneys the following year.

Today Mr. Bailey is chairman and CEO of a productivity and management company and is on the speaking circuit for a fee of $10,000.00. From time to time he also appears as a legal commentator on television and radio. He has tried for several years to regain his practice license but says he has no desire to practice criminal law.

As a 12-year-old I read Mr. Bailey’s book “The Defence Never Rests” and was mesmerized by his war stories and trial tactics. He was a hero of mine.

Perhaps Will Rogers was correct when he said “Heroing is one of the shortest-lived professions there is.”

UPDATE: In 2012 Mr. Bailey passed the bar admission exam in the State of Maine and sought admittance to practice as a lawyer. The Maine Board of Bar Examiners reviewed his case and determined he was not fit to practice law given his past issues in the States of Florida and Massachusetts. On appeal, the tribunal found that the only impediment to allowing him to practice was an outstanding tax debt of $2 million dollars. His lawyer filed an application to reconsider Bailey’s application and he was cleared to obtain a license to practice law in Maine, however, in April 2014 an appeal decision stifled his opportunity to become licensed in the State of Maine. Today he is not licensed to practice law in any state.

Lawdiva aka Georgialee Lang

The Wife, The Mistress and Two Wills

BarristerYears ago I attended the funeral of a dear friend who died much too early. His memorial service was both solemn and awkward. Seated in the front row of the church were his estranged wife, his current common law wife and his girlfriend. As you can imagine, the complexity of his personal life caused difficulties in settling his estate.

In a similarly difficult case, British real estate tycoon Chris John 47, died suddenly without a will, until two wills surfaced.

One of the immediate problems was that Mr. John believed he and his wife, Helen John, were divorced, but upon his early demise it was discovered that the final divorce order had never been pronounced, albeit they had separated seven years earlier.

As a legal spouse, with entitlement to his $6 million estate, the battle lines were drawn between Mr. John’s wife and his mistress, Gillian Clemo, against a backdrop of not one, but two wills.

John’s mistress miraculously located a will three days after hearing that her boyfriend was still married to his wife. Witnesses testified that Ms. Clemo collapsed on the floor when she learned that her boyfriend and his wife were not divorced.

Mrs. John also discovered a will, but when questioned by police readily admitted she had forged the will to ensure their 15-year-old daughter received her share of the estate. She also advised the investigators she was certain that Gillian Clemo had forged the will produced by her, as the signature on the will was not her husband’s.

Ms. Clemo’s “will” named her as the primary beneficiary of her lover’s estate and permitted her to reside in his luxury home in Cardiff, Wales until Mr. John’s daughter reached the age of 27 and then it would belong to her. Ms. Clemo swore an affidavit that stated the will was genuine and she had witnessed Mr. John’s signature on the will.

Unfortunately for Ms. Clemo, the will was riddled with errors including the misspelling of Mr. John’s daughter’s name.

A forensic document examiner testified at Ms. Clemo’s trial that the signature was not Mr. John’s and a Welsh jury convicted Ms. Clemo on charges of forgery. She awaits her sentencing but is not expected to receive jail time.

With no will, the estate will be divided between Mrs. John and her daughter.

As American writer Ambrose Bierce observed: “Death is not the end. There remains the litigation over the estate.”

STORY UPDATE

In 2011 Gillian Clemo was convicted of forgery and fined approximately $10,000. Ms. Clemo appealed the decision to no avail. However, in September of 2013 the Criminal Cases Review Commission, a body set up to review cases where there may be a miscarriage of justice, agreed to assess her case on the basis of new evidence. That evidence included a fresh handwriting analysis and the discovery of a copy of a will identical to the one allegedly forged by Ms. Clemo. With this new development, Mr. John’s estate is again in limbo.

Lawdiva aka Georgialee Lang