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

 

 

 

 

 

A Merry Christmas for Two Innocent Men Set Free in December 2015

BarristerAs Franz Kafka wrote in “The Trial”:

“It’s only because of their stupidity that they’re able to be so sure of themselves.”

While Vancouver’s wrongly convicted Ivan Henry spent weeks in court this year seeking compensation due to a disturbingly flawed police investigation; a prosecutor whose focus was on winning, not achieving justice; and an arrogant jurist, more innocent men around North America were set free from prison after decades of wrongful imprisonment. The numbers are staggering, but their stories are similar. Here are two tragic examples.

Native American Marvin Roberts of Anchorage, Alaska was 19 years old in 1997 when after eleven hours of police interrogation he admitted killing 15-year old John Hartman who died after being beaten, kicked, and sexually assaulted on a lonely Anchorage street. Three other companions were also arrested, charged, and all were convicted and sentenced to lengthy prison sentences. They were nicknamed the “Fairbanks Four”. Mr. Roberts received a 33-year sentence.

Alaska’s Innocent Project was eventually able to prove they were wrongfully convicted resulting in their release from prison on December 18, 2015. But in exchange for their freedom, the prosecutor’s office extracted an unconscionable concession from each of them, namely, that none of them could bring claims for compensation for the decades they spent in jail. Factors leading to their convictions included mistaken witness identification; later recanted, false forensic evidence; perjury; false accusations; and the misconduct of officials.

Floyd Bledsoe, age 23, of Oskaloosa, Kansas also lived the nightmare of a wrongful conviction for the murder, rape, and kidnapping of 14-year old Zetta Camille Arfmann, his wife’s younger sister, who lived with Floyd, his wife, Heidi and their two children.

After a neighbourhood search for Zetta, Floyd’s brother, Tom Bledsoe, discovered her body and produced the murder weapon. He then called his pastor and admitted to the crime, begging for forgiveness. He also admitted his guilt to the local police, before recanting and accusing his brother Floyd of the horrendous crime, explaining that his initial confession was in response to Floyd’s threats that he would release embarrassing information about Tom to his family and friends.

Floyd and Tom’s father, Floyd Bledsoe Sr., provided an airtight alibi for Tom, as did witnesses for Floyd. Astoundingly, Floyd was convicted of all charges and given a life sentence plus 16 years, despite a complete lack of forensic evidence against him. The prosecutor proffered evidence at trial that the rape kit did not produce any DNA results.

Floyd’s multiple appeals were unsuccessful until one appellate court ruled that mistakes made at trial by the prosecution, that went unchallenged by Floyd’s lawyer, were grounds for vacating the conviction. He was released from prison, but after the prosecutor’s successful appeal, he was returned to complete his prison sentence.

To the rescue was Kansas University’s School of Law Innocence Project who in the course of their investigation discovered an agreement between the prosecutor, the county sheriff, and a representative of the FBI, that no DNA testing  on the rape kit would be performed, calling into question the prosecutor’s statement that the rape kit was negative for DNA.

Once Floyd’s lawyers were able to obtain DNA testing on a vaginal swab and the rape kit,  it was determined these items contained the DNA of Tom Bledsoe and excluded Floyd Bledsoe. DNA on Zetta’s socks from Floyd Bledsoe Sr. indicated he had likely assisted Tom to pull the body to its final resting spot.

A month before Floyd’s conviction was vacated, Tom Bledsoe committed suicide, leaving notes admitting he raped and murdered Zetta and apologizing for betraying his innocent brother.

Floyd spent 15 years in prison for crimes he did not commit. Again, prosecutorial misconduct together with ineffective legal counsel, and perjured testimony played a role in the injustice that befell Floyd.

Lawdiva aka Georgialee Lang

Happy Ending for Local Child Abduction Case

DSC00275_1Not all abduction cases end in the disappointment of “no return” or even death, like little Amber Lucius. Early last month I became involved in a child abduction case that spanned the globe from Portugal to Vancouver to Corner Brook Newfoundland.

The parents of a nine-year-old girl named Lauren moved from their long-time home of Vancouver to Portugal three years ago. They settled in and Lauren’s mom who was a Canadian citizen applied for and was granted Portuguese citizenship as did Lauren, who was born in Canada. Their new life began, Lauren was registered in school and by all accounts, her parents enjoyed their new home, particularly Lauren’s father who was a dual citizen and had family and business interests in Portugal.

Unfortunately, the marriage began to falter but the parties remained together in the family home. Lauren’s father became concerned that his wife would leave Portugal with Lauren. He was so concerned that he obtained a “travel ban” which is a non-judicial warning to immigration that a child cannot be removed from the country without a court order or the consent of both parents. Lauren’s mom knew that her spouse would never agree, so she planned a clandestine middle-of-the-night departure, circumventing Portuguese authorities by driving to Seville Spain and catching a plane to Newfoundland where the parties had a summer cottage and where her family resided.

Lauren’s mom knew that her midnight dash was contrary to the law, having received advice from several lawyers and other officials, but she ignored them all. Lauren’s father immediately left Portugal and arrived in Vancouver, ready to do whatever was required to bring his daughter back to Portugal for the start of school on September 11. In the meantime, Lauren’s mother had already obtained an ex parte order from a Newfoundland court giving her interim custody of Lauren. My quarrel with ex parte orders is well-know to regular readers of Lawdiva. They are a blatant breach of due process and ought not to be granted unless there is clear evidence of impending danger to the leaving parent or the child.

We rapidly prepared an application pursuant to the Hague Convention on Child Abduction, an intricate process that entails the compilation of many relevant documents. Of course, all of the documents required translation as they were in Portugese. Back in Portugal a criminal action was commenced since child abduction is a criminal offence. The next step was to locate a lawyer in Newfoundland who was able, on short notice, to get into court there to argue for the return of Lauren. An experienced QC jumped on board to secure Lauren’s return.

An interesting part of this case was that Lauren’s father and mother shared a computer which gave Lauren’s father access to all his wife’s emails, many of which were extremely damaging to her case. After obtaining advice from a lawyer specializing in privacy law, the decision was made to include the emails in the Hague application. Lauren’s return was paramount and any evidence that assisted had to be utilized.

A Newfoundland judge presided over a four-day hearing last week that focused exclusively on the question of which court had jurisdiction to deal with custody of Lauren: Portugal or Newfoundland? The law is very clear that the court where the child “habitually resides” has sole jurisdiction to make custody decisions. Naturally, Lauren’s mother attempted to argue that Newfoundland was Lauren’s habitual residence, a position that was doomed to fail, given the extensive evidence of Lauren’s life in Portugal.

Thankfully, the Newfoundland court found that Portugal was the jurisdiction to determine Lauren’s custody and an order was made that her father return with her to Portugal immediately, just in time for the first day of school.

If Lauren’s mother is determined to bring Lauren to Canada, she must now convince a Portuguese judge that her position is in Lauren’s best interests. The battle is won, but the war is not over.

Lawdiva aka Georgialee Lang

Divorcee Alert: There Are No Single Men in Vancouver

As a happily married divorce lawyer and amateur matchmaker, I am ready to admit there are hardly any single men available to women over forty-years-old in Vancouver. And believe me, I know.

Early on I saw a natural synergy between my family law practice and my access to hordes of soon-to–be-divorced men and women. There was a time when I had a stable of single guys looking to recommit to a lovely lady and an equal quota of bright, attractive women eager to date and mate, if the opportunity arose.

But that was before, not now. Vancouver is bereft of quality single guys willing to date a 40-or 50-something gal. So what has happened in the meantime? Lots.

First of all, we already know that men are loath to make a commitment to a woman even if they are madly in love with her. Guys are just slower to decide whether “the bird in their hand” is as good as the one “in the bush”.

Consider this recent example: my posh 58-year-old friend/client was set up on a blind date with a guy who frequented the same Mercedes dealership she did. After a few phone calls, our guy asked my friend if she wanted to have dinner with him. She said yes and off they went.

However, he chose a neighbourhood restaurant where she was well-know, and apparently he was too. The restaurant proprietor greeted her warmly and then acknowledged her date, noting that he had not seem him in the restaurant lately. That’s when the evening went downhill.

Mr. Mercedes protested that he had never been in the restaurant before and that the owner must be mixing him up with someone else. After ordering a salad and a glass of wine, the formerly amorous gentlemen pronounced the end of their date and drove my friend home.

Yes, my friend later discovered she was friends with his live-in girlfriend’s closest girlfriend. Shortly thereafter, he purchased a large diamond ring and entered into holy matrimony with his fiancee. Who knows how many other women he saw before he settled into domestic life? That’s not classy.

Another reason there are few eligible bachelors for the more mature set, is because they are already spoken for before they even file for divorce. While there are some truly devastated husbands who can’t believe their wife walked away, mostly, they are already paired up before they have paid a retainer to their divorce lawyer.

Why is that? Infidelity is still the leading cause of divorce in my practice. It comes in all shapes and sizes: the old girlfriend he ran into at the high school reunion; his secretary at the office; the pub waitress. One common denominator is they are usually at least ten years younger that the Mrs.

But you say, Vancouver has scores of cultured, attractive, and well-dressed men, just go to the opera, the theatre or the best restaurants in town. Yup, but they’re gay! They make wonderful companions, but the girls I know are after the now-elusive romance they once had.

By the way, Vancouver’s commercial matchmaking game is disastrous. Seems like a tired group of men have made the rounds of all the pros and still haven’t found a woman who would put up with them. You pay them $3000 for a few dates with a guy who needs to be at least 6 feet tall and they pair you up with five guys who are under 5’7″. What a bargain.

We’re left with the internet and frankly, I’ve heard mixed reviews! What’s a girl to do?

Lawdiva aka Georgialee Lang

Another Child Abducted

It is becoming apparent to me that a significant part of my law practice revolves around abducted children. I spent this morning in the BC Supreme Court in Vancouver with the single goal of having a six-year-old boy returned to this mother in Tokyo, Japan.

In this case the father was very tricky, lulling mom to think he would not abscond with their son, but he did.

Mom and dad married and lived in Japan for six years. They had a son born in Japan. Towards the end of 2010, the couple separated and mom and dad signed a divorce agreement which provided that their young son would live with his mother in Japan.

As Christmas was beckoning, mom agreed that her husband would travel to British Columbia to spend the holidays with his mother, the child’s paternal grandmother, taking their young boy with him. Mom signed a travel authorization permitting father to take their son to Vancouver with a return ticket and a return date of January 5, 2011.

All went well and the young boy and his father returned to Japan on January 5. Unbeknownst to the mother, the father had filed documents with the Tokyo Court disavowing his consent to the divorce agreement.

Meanwhile, the father carried on as if everything was settled. Because his wife was concerned he might leave Japan again with the child, the father made a show of cutting up the boy’s Canadian and Japanese passports in front of his wife. Later the mother learned that her husband had cut up two expired passports.

The next day father and son were going on an outing to the Tokyo zoo but this was a ruse, as the father took his son straight to the airport and flew to Vancouver with the child’s new passport.

As well, for the Christmas travel, the mother had signed a travel authorization. The father copied the Christmas travel authorization and used it to forge a new authorization that permitted travel to Vancouver and also said that the child would attend school in Vancouver.

The mother went to the Tokyo police and to her Japanese lawyer but they could not help her. In March 2011 she filed a Claim in the British Columbia Supreme Court for orders that her son be returned.

The father hired three different lawyers, each replacing the other and embarked on typical delay tactics. The Court hearing for the return of the child was scheduled in May, August and October 2011 and on each occasion the father sought and obtained an adjournment.

Finally, the matter was heard today and surprise!–neither the father or his lawyer showed up in Court.

The judge heard the evidence and ordered that the child be returned to Japan immediately; that the Court in BC declined to hear the custody matter; and that the matter would be sent back to Japan where the child’s habitual residence had been before his father kidnapped him.

As well, the Court ordered that the police assist to locate and apprehend the child for his return to Japan. It sounds like a wonderful ending, except that we have every reason to believe that the father, in breach of an earlier order that the child remain in BC until the Court hears the case, will not be easily found.

Yes, eleven months after the abduction, the mother finally has the orders she needs. Now all she needs to do his find her son.

Child abduction is the worst form of child abuse and hopefully when the child is located, the police will charge the father with criminal parental abduction under the Criminal Code of Canada.

Regrettably, the punishment for parental kidnapping is almost no punishment at all.

Lawdiva aka Georgialee Lang