By Mary Serumaga
Visiting Dr. N. Finkelstein’s website, as one does, I came across yet another injustice. But this time the issue was not political but domestic. The victim was not a nation but an individual, Dr. B., a former student and friend of Dr. Finkelstein’s.
Dr. B. had lost his home and his savings in an acrimonious divorce from his wife of twenty-five years. When I got to the allegations of physical, emotional and financial abuse I became distinctly uncomfortable; it was so personal and the divorce proceedings were ongoing. With our collective heightened awareness of women’s rights issues, the presence of alleged violence in the mix was a red flag. From the sometimes cryptic postings, Dr. B. seemed to have signed something and was traumatized afterwards. “It has to end” he said. The easy conclusion was that traumatized or not, Dr. B. probably brought it on himself. Zero tolerance. End of.
However two things caught my attention. First, Dr. Finkelstein claimed there was no evidence of the alleged “countless” episodes of “unspeakable violence at Dr. B.’s hands [that] began back in 1991.” A big claim. Second, counsel claimed fees of $50,000 one afternoon. They then adjourned for lunch only to return with a bill for $80,000. Something was not right.
The matter then spilled in to the criminal justice arena when Dr. Finkelstein began to confront the lawyers. He informed them of his intention to write an article exposing what in his view was perjured testimony. They did not deny the factual content of the draft he sent them. Rather, the attorneys wrote to Dr. B.’s lawyers and not to Dr. Finkelstein, saying publication would harm him (Dr. B.) personally and professionally. Soon thereafter Dr. Finkelstein was arrested, jailed overnight and made subject to a restraining order. By this stage the discomfort and confusion were acute.
Out of curiosity I began to research perjury in divorce proceedings. The results are a revelation of men’s gender-related trials and tribulations in divorce. To begin with, the defense of husbands in divorce is becoming a specialized area of legal practice. There are law firms, websites and blogs devoted solely to this.
There are support groups (in the US and UK) for men who have men-specific issues in divorce. One is not afraid to say, one such issue is our aforesaid heightened awareness of women’s issues. Quite rightly, when in doubt, most of us make a presumption in favor of the wife. But lawyers, judges, family and people interested in healthy legal systems should be prepared to hear the other side.
Impunity for perjurers
In the UK http://www.separateddads.co.uk/ says, “The problem in divorce cases is that the various authorities involved in the proceedings – the judge, the lawyers, and anyone else – may not care at all that your ex-spouse has perjured themselves in the context of your divorce.” The same is true in the United States. In his essay Perjury in Our Family Courts: Family Lawyers BEWARE! attorney Robert P. Dickerson, of Dickerson, Dickerson, Consul & Pocker [who is not connected to this case in any way], says that in Clarke County, Nevada it is unlikely that the DA will prosecute for criminal perjury. He can find only four cases in the last twenty years, “As such, the current ‘general’ policy of the Clark County District Attorney’s Office is to not prosecute criminal perjury cases due to the office’s belief that such cases have little, if any, jury appeal [emphasis added]…. juries, unfortunately, do not seem to consider perjury to be a serious offense.”
Administrative systems are not perfect. Just as many children leave the public school system without the ability to read (32 million adults in the U.S. can’t read and 19 percent of American high school graduates [i]), so divorcing spouses often fall through the cracks in the family legal system and fail to get justice. Because spousal perjury in divorce is not punished, spouses face the hazard of the likely acceptance by the court of false allegations of abuse. Men face the additional bias of the presumption in favor of women where abuse is alleged. Unscrupulous law firms need only allege all those things that ring alarm bells about men and bank their fees – with nearly 70% of divorces being granted to women, clearly there is money to be made by their lawyers.
What appears to have happened to Dr. B. is that once it became clear that his wife’s evidence was internally contradictory, the strategy was to prevent her from being cross-examined. Hence the pressure on Dr. B. to sign an agreement beforehand. A court attorney (the Referee) was appointed to deal with the issue of the financial settlement. (In the UK they are called Masters.) They are either instructed by the judge to merely hear and report back to her or to hear and determine the matter. They sit with the parties in the absence of a judge usually in a facility outside the main court and hear the negotiations while noting progress on agreements made. Referees have the authority to call for evidence to be brought by either party where it is needed. Needless to say the Referee is supposed to be impartial.
Dr. B was defamed by Allyson Burger, one of his wife’s attorneys. On more than one occasion when she left Mrs. B’s side, Burger gratuitously shouted out to the guards in the court, “Be careful! There is a restraining order against him!” If there had been a genuine risk she would have made arrangements for security; after all Dr. B. is paying fees and expenses for both parties. It was all designed to humiliate Dr. B.
That the evidence would not have stood up to scrutiny does not require a lawyer to determine – somebody either attacked you or they did not. If they did and you give a specific date and say you were pregnant at the time and then say in another document that in fact the child was nine months old at the time and in yet another filing that he was a year old and playing in the other room when ‘it’ happened, common sense suggests deception. Especially when none of the witnesses present during or shortly after the alleged incident is actually available to give testimony. What appears strange is that the court did not notice the inconsistencies in the contradictory statements.
Orders of protection are essential shields for women (and men) vulnerable to abuse. Unfortunately men are frequently victims of false allegations of violence.Nicole K. Levy, a divorce lawyer and lawyer at Lynch & Owens P.C. [who is not connected to this case in any way but has a specialty in divorce mediation] says on their website, “most false 209A orders seem motivated by strong emotions, non-violent but highly upsetting arguments and/or parallel legal proceedings, like a divorce or custody case involving children. False claims often involve an exaggerated version of a real incident; a loud argument that actually occurred, in which the plaintiff later describes feeling physically threatened is very common. In some cases, filing a restraining order and alleging abuse can put a taint on a spouse during a pivotal time in a divorce proceeding [such as during settlement negotiations]…. In still others, restraining orders can be used to put financial or emotional strain on a household member, simply to make their lives more difficult or to exact revenge for some other past wrong.”
For a medical doctor with a humanitarian impulse that drove him to return six times to his native Guyana and five times to El Salvador to volunteer his medical services to disadvantaged children; a man who volunteered on medical missions either for international medical charities or under his own steam to Haiti after the earthquake, South Africa, Tanzania, Peru, Dominican Republic, Guatemala, Honduras, Palestine, Dominica and India, a protection order for domestic violence is a humiliating thing. It was calculated to be so. The protection order was applied for three years after an alleged incident of abuse and after which Mrs. B. says there were no further violent incidents although their living arrangements remained as usual except that they did not speak. Tellingly, the alleged incident is not recorded in the application for the protection order. Elsewhere she states that after the order was issued, the abuse intensified contradicting her earlier statement that after the ‘incident’ there was no more abuse or communication until she filed for divorce three years later.
The statements filed by counsel for Mrs. B. lead to the inescapable conclusion that the order of protection was not used here as the necessary shield for Mrs. B. that it was designed to be, but as a sword with which to attack Dr. B.’s integrity, bring him in to disrepute and intimidate him. It was taken out in preparation for court-room theatrics: to enable the lawyer to create a profile of a domestic abuser and dramatically declaim in the courthouse, “Be careful, there is a restraining order against him!”
Dr. B. was given an hour in which to read the 100-page settlement put before him. He discovered after a few minutes that his bank balance was over-stated by $50,000 and spent the allocated hour getting the correct figure from the bank. He was already mortified by the allegations and by being shamed and vilified in the court. During sixteen months of negotiations he had been threatened with jail and the potential loss of his medical license and livelihood. On this point the rules of professional conduct are clear:
“A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter,”[ii] The only exception is where the alleged crime is related to the civil matter AND the lawyer has reasonable belief the crime was committed.
This is where the protection order is invaluable to the predator lawyer – it allows him or her to claim a reasonable belief – regardless of the facts. Looking at the evidence in this case, nobody could reasonably believe that perjury was not at play.
New York State has had a zero-tolerance policy on domestic violence since 1995. Once a person is accused, arrest is mandatory and the issue is handled by the criminal justice system.[iii] This is done to prevent victims from being bullied in to dropping the charges. In Nassau County the Integrated Domestic Violence (IDV) court assigns a single judge to a family to deal with their inter-linked issues including divorce and child-support but a referral to the IDV requires an arrest to have been made.
Mrs. B. and her attorneys were free to cause Dr. B.’s arrest for violence on the day or soon after the protection order was taken out. They could have done so during and after the settlement negotiations but did not. It raises the suspicion that they needed the threat of charges and potential loss of his medical license to hold over his head to make him sign away his life’s work. The rules governing lawyers forbid even veiled allusions in settlement discussions to an adversary’s potential criminal liability during settlement negotiations. In this case the allusions came to be used to induce Dr. B. to silence Dr. Finkelstein’s campaign in his behalf.
On the day in question, exhausted after an eleven-hour shift in an Emergency Room, he was coerced into taking the stop-loss option and signed the settlement without reading the 84 remaining pages or cross-examining his accuser.
Fortunately, judgments based on agreements obtained under duress can be challenged in court (and protested against outside court). Furthermore, lawyers can be reported to their local Grievances Committees. If it is proved that Chetkof and Burger encouraged perjury, they could be disbarred for “illegal, corrupt, and unethical conduct; conduct prejudicial to the administration of justice; and conduct adversely reflecting on fitness to practice law.” They could also be convicted of attempted theft for re-inserting an amount for fees that had been rejected by Dr. Baldeo and reduced. It remains to be seen whether Nassau County, New York will continue to legalize corruption or whether they will apply the law to the obvious perjury in this case either through the Family Court, the District Attorney’s office and/or the Grievances Committee. The Committee has the authority to intervene without receiving a complaint.
Systemic corruption and consequent injustice in family legal practice only thrives because lawyers are protected by our squeamishness about these matters. Dickerson is of the view that with the failure of the criminal justice system brought about by the public’s lack of interest, victimized spouses desperately need family court judges to take firm action on perjury. Dickerson continues, “The suggestion has been made that until our family court judges choose [emphasis added] to “crack down” on the perjury that is prevalent in local [Nevada] divorce proceedings, such conduct will continue.”
Both parties are victims
It is clear that both parties in divorce are potential victims of unscrupulous and predatory divorce lawyers. They are the family law equivalent of ambulance chasers (substitute the protection order for the neck brace in false whiplash claims). Because of the likelihood of their victory[iv] women now face the danger of being preyed on by lawyers who see a business case for dispossessing a hapless male. The process of decimating one of the parties undermines any potential for reconciliation (it is telling that many divorcees remarry one another once the dust has settled) or future amicable relations for the sake of the children. People end up compromising their integrity thinking it is the only way to get an acceptable settlement. There are legal practices that actively take advantage of the many opportunities for mediation built in to divorce procedures in order to preserve workable, civil relations and the personal and financial integrity of both parties. We need more of them for everybody’s sake.
[i] U.S. Department of Education, National Institute of Literacy cited by Huffpost 09/06/2013.
[ii] Disciplinary Rule 7-105(A) of the New York Code of Professional Responsibility.
[iii]“New York State’s Family Protection and Domestic Violence Intervention Act of 1994 revolutionized the criminal justice response to domestic violence by establishing mandatory arrest in domestic violence cases” per New York State’s Response to Domestic Violence: Systems and Services Making a Difference.
[iv] 80% of divorces are initiated by women.