Law Times

Law Times • December 12, 2011 FOCUS Advice for non-criminal lawyers What to do when police arrest the family law client? Y BY GLENN KAUTH Law Times ou're a family lawyer rep- resenting someone in a divorce proceeding who all of a sudden gets a call saying police have arrested the client on suspicion of domestic assault. It's not an uncommon sce- nario, of course, as family mat- ters can often overlap with criminal law issues when two spouses go through an acri- monious breakup. Th at's part of the reason the government recently set up the integrated domestic violence court in To- ronto. But that doesn't neces- sarily help the family lawyer who's dealing with a client's imminent arrest. What should lawyers practising in other ar- eas of law do when a criminal issue arises? Should they, for example, advise their client to speak to police? "Th ere are a number of com- mon problems or situations that people might encounter in a criminal law setting or context," says Matthew Friedberg, a de- fence lawyer with Caramanna Friedberg LLP in Toronto. Cli- ents, for example, might request the non-criminal lawyer to be present while they give a state- ment, a scenario that could lead to problems down the road. Toronto criminal defence lawyer Aaron Harnett, whose practice overwhelmingly in- volves domestic assault cases, has a few basic tips for non- criminal practitioners in that situation. If the client is facing imminent arrest, there are a few steps he recommends: • Get the name and badge number of the offi cer han- dling the fi le. • Record the time of the arrest. • Identify the exact charges. • Get a brief synopsis of the al- legations. • Find out what the release plan is. Do police plan to have a bail hearing or will they con- sent to release? If release is possible, try to fi nd out the possible conditions. • Ask the client for the name and contact information of a potential surety. Perhaps most importantly, Harnett recommends giving the client the standard advice not to give a statement to police. But as he points out, while that's gener- ally true, it's not the case in some situations. "A seasoned criminal law- yer knows that there are some cases where there are exceptions to that rule," he says. If the sus- pect has a potential self-defence argument to make, for example, police may resolve the case or at least release the client right away. So it's important to get a sense of whether police have signaled a willingness to do so early on, according to Harnett. "It's a long call and it's a careful call and it's fraught with danger but it can be re- warding," he says, adding that www.lawtimesnews.com situation is particularly appli- cable to a criminal lawyer who knows the police offi cer and may therefore be better able to make that judgment call. Harnett, who notes that about fi ve per cent of the cases he sees involve family lawyers receiving the arrest call, says that while it's relatively rare for non-criminal practitioners to make a mistake in those situ- ations, one of the basic func- tions at that time is simply to calm the client down. "It's very important that the lawyer begin communicat- ing with a terrifi ed suspect," he says, noting another immi- nent task is to start working on plans for the bail hearing in or- der to reduce delays and ensure the client can get out as quickly as possible. In cases where the non-crim- inal lawyer comes into contact with the client after the arrest and charge, one of the fi rst steps is to decide whether to refer the matter out to a criminal lawyer, according to Harnett. At the same time, it's important to be leery of common pitfalls, such as clients who walk into the lawyer's offi ce with the victim despite a court order that they have no contact. Th ey may have reconciled, says Harnett, but they're still breaking the law and making the lawyer a witness to a crime. So asking the victim to leave and reiterating the terms of the order are key, he notes. Other issues, according to Friedberg, include situations where non-criminal regulations compel the client to make a statement. Th at might occur in Highway Traffi c Act or environ- mental cases, he notes, adding that the courts have neverthe- less generally granted immunity against self-incrimination in criminal matters. As a result, the prosecution usually can't use the statement given pursuant to a 'It's very important that the lawyer begin communicating with a terrified suspect,' says Aaron Harnett. regulatory matter in a criminal case but, Friedberg says, "It de- pends on the court's analysis of the situation." Other situations might in- volve fraud and, in many cases, a civil matter that might become a criminal one or vice versa. "Th ere is a fi ne line sometimes between what the police will consider a civil case and not do anything about it and what they'll consider a criminal case," says Friedberg, who emphasizes the importance of communica- tion between the various types of lawyers involved. For Harnett, one of the key questions is the degree to which a non-criminal lawyer may have handled criminal cases in the past. For those with mixed practices, it's fi ne for them to go ahead and deal with the mat- ter, he says. But for those who haven't, the risks are greater. "I have seen family lawyers tempted to take on criminal mat- ters and they do as good a job as criminal lawyers who are tempted to wade into the family law mo- rass. Dabblers sometimes get away with it and sometimes they get their teeth kicked in." PAGE 11 BRIDGE THE GAP GET THE FULL PICTURE OF THE LAW WITH WESTLAW® CANADA INTELLIGENT FINDING TOOLS Leave nothing to chance with finding tools that ensure you never miss a case on point. Westlaw Canada gives you finding tools that work as smart as you do. Decades of editorially created classifications combined with powerful technology ensure that you never miss a case on point. No matter which search option you choose, you'll always find exactly what you need using fewer steps. Get Better Results Faster with Westlaw Canada Call 1-866-609-5811 or visit www.westlawcanada.com

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