Why Clients Who Settle Their Divorce Cases May Suffer “Settler’s Remorse”

GEO CASUALEveryone agrees that a courthouse is the worst place to resolve a family law issue and now, lawyers are mandated by law to exert every effort to assist clients to settle their disputes outside of the formal justice system. The menu of options includes collaborative law, mediation, settlement conferences, med/arb, and arbitration.

Section 8(2) of the Family Law Act provides:

“…a family dispute resolution professional consulted by a party to a family law dispute must
(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and
(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.”

Most lawyers take this obligation seriously and work hard to keep their clients out of court. However, sometimes a lawyer’s efforts to manoeuvre a client into an out-of-court settlement, where tens of thousands of dollars can be saved, and immense emotional stress avoided, backfires on the lawyer.

The recent case of Vicencia v. Gradley 2018 BCSC 1338 illustrates such a situation. Ms. Vicencia, age 74, retained senior counsel to assist her to resolve the issues arising from the breakdown of her 36-year marriage. She had allegedly put up with her husband’s bad behaviour for years, conduct which included his inability to contribute financially to their relationship, sexual abuse, adultery, theft, and drunkenness.

Of course, her experienced counsel knew that these allegations and complaints had no bearing on the legal issues, the primary one being the division of Ms. Vicencia’s pension.

The Court described the legal services provided by counsel, all undertaken with the goal of resolving the outstanding issues, including two chambers appearances for document production and a divorce order, the continuation of a discovery, and an 11-hour mediation, together with the consultations, preparation, meetings and correspondence related to the services. At the conclusion of the mediation, Ms. Vicencia’s case was settled with the family property, including the pension, divided equally between her and her husband.

Ms. Vicencia expressed relief at the resolution and hugged her counsel at the conclusion of the marathon mediation session, but that only lasted 11 days when she began complaining that she signed the settlement agreement without reading or understanding it.

Her next gambit was to challenge her lawyer’s bill for legal services in the amount of $17,430.00, charged at a rate of $350 an hour and completed between May 9, 2017 and July 11, 2017.

Her counsel advised the court that her client was fully informed, understood and read the agreement and was fully aware and agreeable to the terms of the mediated settlement. The lawyer subpoenaed the mediator whose evidence confirmed that of her counsel.

The court remarked that while the Agreement to Mediate stipulated that the mediator would not be called for any court proceeding, the law permitted the mediator to testify if the interpretation of the settlement agreement was put in issue. Ms. Vicencia had done that.

Interestingly, the settlement agreement permitted either party to withdraw from the deal up to 4 days after the mediation session, but neither party did.

Author/Lawyer Steve Mehta says this about settler’s remorse:

“First, why does it occur? According to research, people are poor at predicting the true state of their emotions. Second, buyers’ remorse attaches to people’s self confidence about the decision. Often times, mediation and litigation is a foreign environment and the clients fear that they may have made the wrong decision because of lack of knowledge.”

Finally, a settlement of the financial issues in a divorce case never comes close to mitigating the emotional issues described by Ms. Vincencia. Not surprisingly, the court refused to reduce her lawyer’s bill, calling it eminently reasonable. Ms. Vicencia’s settlement negated the need for a 10-day trial, but left her with an additional costs award of $3,000 for her failed attempt to reduce her lawyer’s bill.

Lawdiva aka Georgialee Lang

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False Advertising a No-No for Lawyer

What’s wrong with a lawyer advertising offices in two cities; multiple lawyers practicing at the firm; with combined legal experience of 100 years, representing thousands of people? Plenty…if the lawyer has only four years of experience, works as a sole practitioner, and has made the rest of it up.

GeorgiaLeeLang009Ontario lawyer John D’Alimonte found himself before the Law Society of Ontario accused of false advertising, which included his website with photos of five lawyers who were actually actors. An earlier version of the website contained photos of several Florida lawyers who Mr. D’Alimonte received referrals from after partnering with the head of the Florida firm, Howard Merricks, and connecting with an American lawyer referral service called AskGary, a company run by a non-lawyer.

But that wasn’t all….The Law Society disapproved of posted testimonials that lauded Mr. Merrick’s skill and successes although he did not work at the Ontario firm. The website also claimed that the firm’s lawyers specialized in representing injured people, although no specialization certificate had been granted to Mr. D’Alimonte.

The Law Society found that the lawyer’s behaviour constituted professional misconduct, noting that people looking for legal services need legal representation to manoeuvre through a complicated justice system and are even more vulnerable when they have suffered personal injury.

The legal tribunal also said:

“Because quality is difficult for clients to assess, it is particularly important that advertising is not misleading, confusing or deceptive…not all lawyers are the same. Clients are entitled to make choices based on expertise, experience and even price.”

It obviously benefited Mr. D’Alimonte’s legal practice to hold himself out to be more than he was, to the potential detriment of clients who were misled and deceived, the crux of his chastised misconduct.

Lawdiva aka Georgialee Lang

BC Wife Beater Declared a Dangerous Offender

_DSC4179 - Version 2Canada’s dangerous offender law is reserved for Canada’s most violent criminals and sexual predators. It has its roots in the 1947 Habitual Offender Act which dealt solely with offenders with lengthy criminal records, and the 1948 Criminal Sexual Psychopath law.

In what may be a first, a perpetrator of domestic abuse has been declared a dangerous offender, permitting the court to sentence him to an indeterminate sentence. In R. v. Malakpour 2018 BCCA 254, after convictions for criminal harassment, assault with a weapon, assault causing bodily harm and kidnapping, all directed at his wife, Mr. Malakpour’s designation was upheld by the British Columbia Court of Appeal.

This decision is unusual for the nature of the offences and for the fact that Mr. Malakpour, unlike most offenders castigated as a “dangerous offender”, did not lead a criminal lifestyle or have a lengthy criminal record.

However, after their marriage in Iran and immigration to Canada, Mr. Malakpour’s wife became “westernized”, particularly compared to her husband who was a strict follower of Islam and Sharia law, and they ultimately divorced.

He took the view that he was still married to his wife under Sharia law despite their Canadian divorce in 2006.

His first offences occurred after his wife left the family home when he made thousands of abusive phone calls to his wife’s home and workplace, harassment that caused his wife’s employer to put in a second phone line to conduct business. The calls included death threats. He was sentenced to 30 months incarceration for conduct described as ““unremitting, exceptionally intrusive, and frightening” and not deterred by police intervention or court order.” R. v. Malakpour 2008 BCCA 326.

While on parole in 2009 further offences occurred, including his unlawful departure from BC to Montreal from which he made phone calls threatening his wife, her employer, and the judge who presided over this first case. After a psychiatric evaluation he was diagnosed with a personality disorder with narcissistic and anti-social traits, coupled with cultural factors, and sentenced to two years less a day and 3 years probation.

However, his dangerous offender classification resulted from criminal conduct in 2012 when he located his wife in her underground parking lot and demanded to know why she had left him and had another man in her life. He told her that everybody was laughing at him, and calling him a “pimp” in Farsi.

He held a pair of wire cutters to her throat, and told her, “don’t scream or I will cut your throat”. He punched her about 10 times, mostly in her face, using his fists and the wire cutters, causing significant bruising.

On September 11, 2012, Mr. Malakpour was found guilty of assault with a weapon, assault causing bodily harm, criminal harassment and kidnapping of his former wife,  as well as uttering threats to her, to her male friend, and to the previous judge, and assaulting a police officer.

 In order to designate Mr. Malakpour a dangerous offender, the sentencing judge had to find:

(1)  the predicate offences were serious personal injury offences;

(2)  Mr. Malakpour constituted a threat to the life, safety or physical or mental well-being of other persons;

(3) there was a pattern of repetitive behaviour, of which the predicate offences formed a part, showing a failure to restrain his behaviour;

(4) a likelihood of causing death, injury or severe psychological damage to other persons through failure in the future to restrain his behaviour.

The Court of Appeal upheld the designation, but granted the appeal with respect to his sentence, holding that the trial judge erred in ordering an indeterminate sentence. They found that the goal of public protection could be achieved by a sentence of 10.5 years less credit for time served, followed by a 10-year supervision order, with strict terms.

The trial judge captured the essence of Mr. Malakpour when he said:

“He denies the legitimacy of any Canadian court to control him and in particular to interfere with his control over his wife, whom he declares must obey him. He continuously expresses that his relationship is a private matter with his wife. It is not the business of the court, the Crown or the police. He will not obey court orders that purport to limit his contact with his ex-wife: instead he says it is his right to contact his “wife”. He denies that any of the previous convictions are legitimate and continues to dispute that he has committed any offences…”

Lawdiva aka Georgialee Lang
 

 

 

Disbarred Lawyer Sentenced to 7 Years by Ontario Court

DSC00507 (2)If you were a lawyer practicing in the 1980’s you may remember the escapades of Ontario lawyers Harry Kopyto and his colleague, Angelina Codina. Harry was a rabble rouser with socialist leanings, a defender of the poor and disadvantaged, who was found in contempt of court for saying publicly that the courts and the RCMP are “stuck together like crazy glue”. Happily for Harry the Ontario Court of Appeal rejected the finding that his statement “scandalized the court”and allowed his appeal.

But Harry’s problems did not end there. In 1989 he was disbarred for fraudulently billing Ontario Legal Aid for $150,000 and he resigned himself to working as a paralegal, a profession that at the time was not regulated.

Kopyto’s bruised reputation was further damaged when his former girlfriend, high-profile immigration lawyer Angie Codina, ran into her own trouble with the law society in 1989. She was convicted of fraud in 2002, related to overbilling Legal Aid and was also disbarred. Ms. Codina continues to raise the ire of the courts in Ontario and New York State.

In a decision handed down this week, R. v. Codina #8, 2018 ONSC 2180 (CanLII), Angelina Codina was sentenced to 7 years in prison for defrauding vulnerable individuals seeking to immigrate to Canada. In once case she counselled her client to lie to immigration officials. Her crimes were committed for financial gain.

While her sentence appears stiff, the court referenced her convictions for similar offences in the State of New York. In 1996 she was charged with 28 counts, including grand larceny, scheming to defraud, and the unlicensed practice of law. She was convicted on 27 counts and sentenced to 9 to 28 years. The convictions were later set aside and after a new trial, she was sentenced to 5 to 15 years. She served 5 years and was deported back to Canada where she carried on her devious work.

The court showed no sympathy to Ms. Codina remarking that “she is a person who preys on vulnerable people”…is “a forceful personality….rarely admits her own mistakes…is fundamentally dishonest… and a revisionist historian.”

She intends to appeal, of course. As for Harry Kopyto, when Ontario passed legislation regulating paralegals he battled vigorously but was found “unfit” to remain in the profession.

Lawdiva aka Georgialee Lang

Guest Post: Canada Can Look to the USA For Expansion of Legal Marijuana

While Canadians are waiting for their federal government to legislate in the area of legal marijuana, the United States is miles ahead….Marijuana legalization could come to twelve more US States in 2018.

Despite strong efforts to maintain the criminalization of marijuana use in the United States, many individuals and lawmakers have taken a step in the direction of legalization over the last several years. Currently, there are 29 states that allow for medical marijuana use, under particular limitations, and a smaller percentage that give residents the ability to use marijuana on a recreational basis under state law. The federal government has been slow to end prohibition of the drug, but recent research shows growing support for legalization on a state level for many reasons.

One of the strongest components of marijuana legalization support revolves around the well-documented success of states that have eliminated prohibition for residents. The states that allow for recreational use of marijuana have systems in place to ensure the tax revenue and economic growth is regulated, mostly through the use of bonding and licensing requirements for dispensaries, growers, and distributors. Based on the positive outcomes legalized states have generated, there are 12 more states considering legalizing marijuana use on some level in 2018.

Michigan: In the state of Michigan, there is a current initiative to gather the 250,000 signatures needed to include a marijuana legalization bill on the ballot in the 2018 election cycle. If approved, the bill would allow for recreational use of the drug for those over the age of 21 who are also residents of the state.

Delaware: In late 2017, a legislative task force was formed in order to analyze the impact marijuana use has on state residents from a recreational standpoint. A bill was shot down in 2017, but the hope is that an opportunity remains in 2018 after the findings of the task force are made public.

New Jersey: With a Democratic-led legislature, New Jersey is poised to legalize the use of marijuana for recreational purposes in 2018. A skyrocketing criminal justice cost along with proven racial injustices in the state are the prime motivators behind passing such legislation this year.

Vermont: A bill legalizing the recreational use of marijuana was approved in Vermont in May 2017, but it was vetoed by the governor at the time. A commission tasked with studying the issues surrounding recreational marijuana use, including health concerns and driving impairment statistics, was created at that time. Based on the results of the commission’s work, legislation is set to pass in Vermont in 2018 allowing adults over the age of 21 to possess up to one ounce of marijuana and cultivation of two mature plants.

Oklahoma: During either the June or November elections, Oklahoma is set to add a bill to the ballot for medical marijuana use legalization for state residents.

Ohio: Lawmakers in Ohio failed to get a bill passed to legalize recreational marijuana use in the last three years, but a ballot proposal is intended to be included during the midterm election cycle this year.

Connecticut: Thanks to local efforts from lawmakers in Harford, Connecticut legislature is set to include a statewide ballot vote for recreational marijuana legalization in November 2018.

Rhode Island: After forming a legislative commission in 2017, Rhode Island may be one of the next states to legalize recreational marijuana use in 2018. The commission sought to research the impacts of the drug on its community, based on neighboring studies in Massachusetts and Maine.

Kentucky: A bill for the legalization of medical marijuana may be on the docket in 2018 for residents of Kentucky. Although there is little support from the current governor, advocates for the drug’s medical use may beat the odds during the midterm election cycle.

Utah: Medical marijuana may be legalized in Utah, following in the footsteps of several other states nearby. The ballot for the midterm elections should include a bill for Utah voters to weigh in on in 2018.

South Dakota: South Dakota may also be close to legalizing medical marijuana, as signatures are currently being gathered for a ballot initiative slated for 2018 election inclusion.

Missouri: Similar to South Dakota, signatures are currently being collected for a medical marijuana bill in Missouri which would allow voters to make the decision in this election cycle.

GUEST AUTHOR:
ERIC WEISBROT is the Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog.

30-Year-Old Son Evicted by Court Order from Parent’s Home

IMG_0311 - Version 2Today a judge in New York ordered “deadbeat” son Michael Rotondo to “get a life” and move out. Rotondo, an unemployed millennial, has taken advantage of his parent’s goodwill for over 8 years with nary a financial contribution to his living expenses. Perhaps he at least pitched in with the family chores? Not a chance!

Media reports indicate that Rotondo was involved in a custody dispute with his young son’s mother and lost all custodial rights. He can apparently visit his son but only with the child’s mother’s approval and the access must be in a “therapeutic environment”. Sounds to me like Mr. Rotondo has more problems than just overstaying his welcome at the familial home.

His parents begged him to get a job but he said that if he is employed he cannot receive free government services for indigent litigants, as he plans to appeal the custody order.

He is also involved in a lawsuit against a former employer, Best Buy, who fired him when he refused to work on Saturdays, claiming that he needed Saturdays off to see his son.

His beleaguered parents have exhibited divine patience yet their son suggested to the court that he had not received sufficient notice. This argument was soundly rejected. Over a period of three months, the Rotondo parents issued five eviction notices, all of which he ignored.

However, if you think his parents are cold-hearted, think again….They offered to help him find a place; supply him with funds to get settled; offered to provide monies so he could repair his rundown car; and offered to provide him with some furnishings. Enough is enough!

Lawdiva aka Georgialee Lang

Extra Fee for Excellent Result in Family Law Case Denied by Ontario Court

GeorgiaLeeLang025The law in Canada generally prohibits lawyers from entering into a contingency fee agreement with clients in family law cases. In Ontario there is an absolute prohibition, while in British Columbia, it is permissible so long as the matter does not relate to children and is strictly financial.

In a recent Ontario case, the Court of Appeal (Jackson v. Stephen Durbin and Associates 2018 ONCA 424) considered whether a family law lawyer’s retainer agreement, which stipulated that if the lawyer achieved exceptional results he could charge an additional fee, constituted a contingency fee agreement.

Client Davis Jackson, a police officer earning $96,000 per year, hired Stephen Durbin and Associates to represent him in an action where he sought custody of his six-year-old daughter. The firm’s representation was excellent. Mr. Jackson received sole custody of his daughter, one-half of the sale proceeds of the matrimonial home, and costs of $192,000.

Mr. Jackson owed the law firm $132,597 in legal fees which he paid, but the firm also held back a “results achieved fee” of $72,433, to which he objected. No breakdown of the extra fee calculation was provided.

Ontario’s Solicitor’s Act reads as follows:

Contingency fee agreements

28.1 (1) A solicitor may enter into a contingency fee agreement with a client in accordance with this section.

Remuneration dependent on success

(2) A solicitor may enter into a contingency fee agreement that provides that the remuneration paid to the solicitor for the legal services provided to or on behalf of the client is contingent, in whole or in part, on the successful disposition or completion of the matter in respect of which services are provided.

No contingency fees in certain matters

(3) A solicitor shall not enter into a contingency fee agreement if the solicitor is retained in respect of,

(a) a proceeding under the Criminal Code (Canada) or any other criminal or quasi-criminal proceeding; or

(b) a family law matter.

The law firm argued that the results fee was not a contingency fee but a “bonus” or “premium” which was not inappropriate.

The court disagreed saying that family law litigation is fundamentally different from civil litigation. They said that because family finances are divided and no outside funds are injected, it is inappropriate for a lawyer’s fee to be contingent on a particular result.

In respect of a custody issue, the court confirmed there are no “winners” or “losers” as a determination of custody is based on a child’s best interests and an analysis of which parent had more success is contraindicated: it is the child’s success that is paramount.