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October 15, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Sigh, law practice can be so difficult. This case demonstrates that attorneys can’t even facilitate international child abduction without being sued for doing so (New Jersey Law Journal, 10/13/14). I tell you, it’s a cryin’ shame.

It seems that, when Peter Innes and Maria Carrascosa divorced, the family court judge took the precaution of ordering that their child’s passport be held in trust by Carrascosa’s attorney. That was to prevent either parent from absconding with the child across international borders although clearly, if either parent were to have done so it would have been Carrascosa. She’s a native of Spain while Innes lives in New Jersey where the divorce was filed and completed.

Undaunted by a mere court order and her daughter Victoria’s passport being out of her reach, Carrascosa apparently went in search of a less scrupulous lawyer and – lo and behold – found one. She fired her first lawyer, Mitchell Liebowitz and hired another, Madeline Marzano-Lesnevich. In due course, Liebowitz transferred his file to Marzano-Lesnevich along with the passport and received an acknowledgement that the passport had been received by Carrascosa’s new lawyer.

The file and passport were sent over but the passport went missing after a December 2004 meeting between Carrascosa and Marzano-Lesnevich, court documents said.

The real-world translation of that sentence likely is that Marzano-Lesnevich and her new client decided that Carrascosa should take Victoria to Spain so Innes couldn’t have any contact with his four-year-old daughter. Face it, the passport didn’t go “missing.” Marzano-Lesnevich had it; she met with Carrascosa who, shortly thereafter travelled to Spain with her daughter where they’ve been ever since. Victoria was able to leave the country because she had her passport. The passport is not now and has never been “missing.” We know exactly where it is and where it’s been. Marzano-Lesnevich gave it to Carrascosa for the purpose of her abducting her daughter abroad, or I’m the man in the moon.

I’m encouraged to conclude that because a jury found it to be true.

Innes was granted sole custody in 2006 and subsequently sued Marzano-Lesnevich and her firm on his own and Victoria Innes’ behalf...

In May 2011, a jury awarded more than $1.4 million.

About $400,000 of that was awarded to Victoria in absentia, but an appellate court reversed the trial court on that claim leaving only the award of $992,000 to Innes. That award remains intact except for about $158,000 in attorney fees Innes incurred and that both courts ruled Marzano-Lesnevich must pay. The issue of whether he can recover his attorney fees is now before the New Jersey Supreme Court.

Innes was awarded $700,000 for emotional distress and a little over $126,000 in pre-judgment interest.

So, whatever the outcome in the state Supreme Court, the point has been made – lawyers who facilitate the abduction of children in family law cases can be made to pay. And it seems juries, unlike many judges, politicians and others, think that stealing children from a father is a pretty serious offense. After all, $700,000 is a lot of money.

Now, this of course is a case of parental child kidnapping, but the law on which it’s based and the outcome are equally applicable to any number of situations. Did the lawyer advise the client that ignoring an order of visitation is acceptable? If the parent then interfered with visitation, then the emotional distress occasioned thereby plus (at least for now) the attorney fees required to pursue the matter are recoverable against the lawyer.

Did the lawyer advise the client that making a false claim of intimate partner violence or child abuse would be a good tactic to gain the upper hand in a custody case? If the parent then did so, that too would be actionable in civil court for monetary damages.

What about advice to leave the state? The result would be the same.

Granted that proving those claims would be more difficult than proving the transfer of a passport from lawyer to client. Attorney-client communications are privileged and so cannot be required to be disclosed. But slips of the tongue do occur and when they do, that privilege can be deemed to have been waived.

Plus, the objective facts of a case may so strongly indicate that the lawyer was instructing the client to commit a civil or criminal wrong that they stand on their own. In that case, it would fall to the defendant lawyer to get his/her client to waive the privilege.

As an example, I’m reminded of the case of Canadian Michael Ryan whose wife claimed he was abusive toward her. The two had been married for close to 20 years when their relationship began to fray and Ryan had an extramarital affair. At no time during their marriage had his wife, told anyone – not a colleague, not a friend, not a relative, not a neighbor, not the police, not a doctor – that Ryan had abused her. Then she secretly visited a family attorney and less than two weeks later went to court for a restraining order against him claiming abuse. She soon began seeing a therapist claiming to be a battered wife.

In that case, it doesn’t take much imagination or intelligence to figure out that the family lawyer planted the seed in her mind. Any jury would see the obvious. At that point it would be up to the lawyer to prove that he/she hadn’t done what the facts so clearly point to.

Now, at this point you’re probably asking “What about Carrascosa?” After all, whatever Marzano-Lesnevich did with the passport, she’s the one who committed the most serious wrong. She’s the one who abducted the child. So why isn’t she in court?

The answer is twofold. First, I suspect Innes has been unable to serve her with notice of the suit against her. He claimed, among other things, that she committed various intentional wrongs against him, but the trial judge severed those claims. The only reason I can think of for that ruling would be that she hasn’t been served with process and therefore the court has no jurisdiction over her. In order for the rest of the case to proceed, the court severed her from the case. Innes can still litigate against her if he’s successful at hailing her into court.

But there’s more, and this is where it gets strange.

[The appellate court] agreed with the lower court that no liability should be allocated to Carrascosa based on an exception to the joint tortfeasor rule applicable “‘when the duty of one encompassed the obligation to prevent the specific misconduct of the other.’”

Hmm. I’m not buying it. The idea that Carrascosa should escape liability for her own patent wrongdoing because her attorney didn’t prevent her from doing it strikes me as the height of absurdity. What’s next, “Stop me before I kill again?” Yes, Marzano-Lesnevich had a duty to keep the passport out of Carrascosa’s hands and, having failed to do so, is liable for the resulting injuries to Innes. Fair enough.

But because one person committed a tort doesn’t mean another person didn’t as well, and Carrascosa plainly did just that. Her attorney did wrong, but is not her client’s keeper. Nothing prevented Carrascosa from accepting the passport, keeping it, but still complying with international law and the judge’s order. She violated both all by herself with neither help nor advice from Marzano-Lesnevich. To rule otherwise is to pretend that, in some way, possession of the passport rendered her incapable of licit behavior. As I said, that’s patently absurd.

Still, that’s the only shortcoming of the case. In future, attorneys will want to be careful to not encourage the type of behavior Marzano-Lesnevich apparently encouraged by Carrascosa. If they do, they may find themselves paying out hefty awards to aggrieved parents like Innes. And money, particularly to attorneys, can be a powerful motivating force.

Thanks to Jeff for the heads-up.

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