Mr. Jeffrey ("Jeff") J. Niederhoffer, Attorney at Law LL.B., CCL!
I just wanted to write to say hello again, and to congratulate you on this, your fourth year (or thereabouts) operating CyberSmokeBlog ("CSB").
Even while I have been practising law in Newfoundland, and even more so as I have been here in Winnipeg on leave, I have been watching developments in this lawsuit with great interest. Of particular note is the fact that plaintiffs seem to be 'dropping like flies', as Mr. Vorcheux would say.
I have actually been giving this particular issue a great deal of thought recently.
Assuming that these plaintiffs were initially enthusiastic and motivated about entering the lawsuit, three important questions immediately suggest themselves: What exactly has transpired to cause them to change their minds? Did they suddenly realize that they had not "actually" been defamed? Or are they displeased with MMF lawyer Murray Trachtenberg's representation?
Given the volume of plaintiffs who have "dropped out" since the filing of the suit, I would argue it is likely that Mr. Trachtenberg has some professional ethical issues with which he may soon have to deal, up to and including the distinct possibility of Law Society review. Upon closer inspection, the above three questions reduce to one, namely, that of Mr. Trachtenberg's conduct as counsel throughout this lawsuit. If the withdrawing plaintiffs were "too" enthusiastic and motivated about entering the lawsuit, or if they were ignorant of their interests, or if they disapproved of various actions that Mr. Trachtenberg has taken as their counsel throughout the suit - in all three instances, it is Mr. Trachtenberg who must be considered to be at fault. It's a lawyer's job to properly advise clients and follow their instructions. At the end of the day, he is accountable and responsible to them for his actions and omissions.
To put it a different way: From the vantage point of the plaintiffs, NOTHING has "changed" in this lawsuit that has not been directly effected by MMF lawyer Murray Trachtenberg. It is Mr. Trachtenberg far more than anyone who should find disconcerting that - some five years after the commencement of the suit - such a large number of plaintiffs have dissociated themselves from it and wish no longer to be his clients. To be blunt, he should be asking himself what he's doing wrong. For he clearly is doing, or has done, SOMETHING wrong. The fact he has now "lost" so many clients is, I would respectfully submit, proof enough of that.
I'm not privy to the private discussions taking place among his clients - indeed, in that sense, I'm likely in the same boat as Mr. Trachtenberg himself. It would appear, however, that at the filing of this suit, the plaintiffs who would subsequently drop out did not fully appreciate the consequences of BECOMING plaintiffs. If that is so, it is likely they were not properly advised by their counsel. Clients' sins of omission ultimately track back to the lawyer. Mr. Trachtenberg owed his clients a duty to ensure that they WERE properly advised: namely, to determine they understood and appreciated all of the material issues involved in filing a defamation claim; to proactively seek out their questions and constructive input; and ultimately to obtain their informed consent to become plaintiffs. If as many as six plaintiffs now have withdrawn/sought to be withdrawn from the suit, I do not see how Mr. Trachtenberg could have properly discharged his duties to his clients, at least with respect to these six individuals.
Understandably, these individuals may feel that, in professional ethical terms, Mr. Trachtenberg owes them an accounting. The Law Society is a live option, but before we come to that point, I would encourage any or all of the withdrawn/withdrawing plaintiffs to have a constructive dialogue with Mr. Trachtenberg. They may no longer wish to be associated with him or this lawsuit, but that does not mean that all ability to communicate is presumptively lost forever. I submit it is fair to say that a large part of the source of these plaintiffs' wish to withdraw lay in the fact that they and their counsel have not properly communicated. Although Mr. Trachtenberg bears ultimate fault for this apparent failure to communicate, I would encourage any or all of these six individuals to take the first step and proactively open up a dialogue with him. (And of course, I would offer the same advice to any remaining MMF plaintiffs who are now contemplating withdrawal.) Only if Mr. Trachtenberg proves totally unresponsive to such a dialogue should a Law Society complaint even be contemplated.
In conclusion, I'm still watching this suit - less and less as your former counsel (who once boasted a fairly intimate knowledge of it) and more and more as a third-party spectator. I encourage you to keep the faith, keep on fighting, and, most importantly, keep up your spirits. Part of Mr. Trachtenberg's "failure to communicate" with these six MMF Board members may consist in the fact that he did not advise them that you, as a citizen journalist, would be as tenacious as you have proven to be. In that respect, I hope and pray you continue to defy the expectations of the MMF plaintiffs and their counsel.
Be sure to give my regards to Vic. I think the last time I saw him was last July or August, when we all went out to Salisbury House for lunch. We really have to do that again sometime.
Cheers,
Jeff Niederhoffer
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www.ptlaw.mb.ca; mtrachtenberg@ptlaw.mb.ca
As you well know, the Plaintiffs (Metis National Counsel and its current President Clem Chartier were represented by none other than, yes, Murray Trachtenberg. Why? Doesn't the MNC have their own lawyers?
The amount of paperwork generated by Counselor Trachtenberg in the CyberSmokeSignals litigation has been truly amazing - well over 1,000 pages. That's probably more than you'd get in a first degree murder case. What's his motivation? Perhaps an example would be instructive.
In 1974 Mr. Trachtenberg was one of three lawyers working for the then Walsh Micay & Company who were sued over what amounted to a botched will. Page 8 of the Statement of Claim (emphasis, italics ours):
15. The plaintiff states that the defendant, Murray Trachtenberg, was negligent as follows:
(a) in failing to advise the plaintiff at the outset or make her aware that there was a conflict of interest or potential therefor and in further failing to advise the plaintiff at the outset to seek outside counsel as the plaintiff might have a claim against Walsh Micay & Company.
(b) in failing to assess the file and provide the plaintiff with the proper advice or at all as to the claim seeking to set aside the Will on the basis of undue influence;
(c) failing to protect the plaintiff fram a lawsuit as commenced by her brothers;
(d) in hot having the matter settled at the earliest possible time;
(e) in failing to determine that the method of obtaining instructions from the residual beneficiary's father was improper.
After the MMF filed its Statement of Claim (late March 2005), CSS published several e-mail from Lionel Chartrand who at the time was the site's pro bono General Legal Counsel clearly demonstrating the allegedly defamatory material (a petition calling for financial reform of the Federation's election campaign spending bylaws): was conceived by Mr. Lionel R. Chartrand: he wrote the words: instructed the Defendants they were publishable; requested his name not be revealed as their author; and at no time cautioned his article could contain defamatory statements.
"Counselor" Chartrand subsequently left Manitoba Legal Aid in July of 2008 to become, if you can believe it, a Crown Prosecutor in Wetaskiwin, Alberta
Why has the most culpable individual in this litigation never been named as a Co-Defendant? We'd respectfully submit because he'd entered into a personal services contract with the MMF to provide paid legal advice regarding Metis hunting rights. Alternatively stated, he was in a serious conflict of interest position. As a member of the Manitoba Bar he was entitled to have a lawyer appointed to represent him which he did.
When we were subjected to an Examination for Discovery (September 2007), Mr. Trachtenberg was clearly aware of the aforementioned details but chose to ignore them.
This litigation is not about alleged harm done to the Plaintiffs far from it. Rather it's a classic, textbook SLAPP (Strategic Lawsuit Against Public Participation) where the objective is revenge. The law is being misused in an attempt to bully, threaten, intimidate and harass unrepresented Defendants by an asset rich, taxpayer financed organization.
We wonder how informed the remaining Plaintiffs are especially the fringe players such as Rita Cullen and Darryl Montgomery who have not been MMF Directors since June 29, 2006 the date of the last Federation election. For some time we've suspected the case is being driven by David Chartrand, a small group close to him and, of course, Murray Trachtenberg. It was quite revealing when the individual who either tabled the Motion to sue CyberSmokeSignals or seconded it recently dropped out.
As for your reference to "Vic" we assume you mean Vic Populi The Public Eye (Truth to Power - www.accesstoinfo.blogspot.com; vicpopuli@gmail.com). It seems he has already published your letter, Mr. Niederhoffer, using the subject line, "Lord of the Flies" probably a reference to one of our Alberta reader's and staunch Lionel Chartrand supporter (Just joking Mr. Vorcheux!) Tully Vorcheux who recently described the Plaintiffs as "dropping like flies."
Lord of the Flies was the first book by American Nobel Prize winning author William Golding. Although it sold less than 3,000 copies when published in 1954 it went on to become a best seller. Time Magazine (2005) selected it as one of the 100 most most influencial English language works written since 1923.
As is his custom, Mr. Populi has left his readers with the usual metaphorical picture accompanying his latest posting.
Looks like a scene from a play - anyone recognize it?Sincerely,
Clare L. Pieuk
posted by Clare L. Pieuk at 3:56 PM
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