A Pelham, Ont., lawyer has won a $50,000 libel judgment against a former client who made defamatory comments about his criminal record and disciplinary history in newspaper advertisements and on web sites following a fee dispute.
Leigh Daboll, who runs his practice out of his home in the Niagara Region, hopes the case will serve as a “cautionary tale” to young lawyers. “I can’t over-emphasize how careful you need to be about who you represent, especially for new lawyers just starting out,” he says.
“You must screen your clients very carefully to avoid this kind of situation from occurring, which in my case dominated nearly a year of my life.
“I don’t know whether I can say I’m pleased yet with the decision. The more appropriate word is relieved. I represented this guy for two months. Seven or eight years later, I’m still dealing with this stuff.”
Mark DeMarco was referred to Daboll in 2003 for matrimonial litigation with his estranged spouse, but the retainer ended soon after. A lengthy assessment process initially reduced the account that was worth less than $4,000 before a review by the court reversed the decision and made a costs award against DeMarco.
In November 2008, Daboll finally collected on that judgment with a writ of execution and seizure satisfied by the proceeds from a property sold by DeMarco.
Soon after, advertisements began appearing in local newspapers under the title “Lawyer Crime Ontario.” The same ads appeared on dirtylawyer.com and lawsocietiesreform.com, two web sites run by DeMarco. The ads referred to Daboll’s 2003 conviction for criminal harassment and findings of misconduct by the Law Society of Upper Canada.
In 1996, an LSUC panel reprimanded Daboll over findings that he had fabricated a subpoena to witness.
In 2003, he spent 65 days in pretrial custody before pleading guilty to criminal harassment of a woman who had previously been in a relationship with him. He received three years’ probation, while the law society suspended him for 30 days. It also ordered him to pay costs and get counselling.
In 2006, the LSUC suspended him again, this time for two months, after a panel found he was in a conflict of interest by having a personal relationship with the estranged wife of a client while representing him against her in a family law proceeding.
In his decision dated Jan. 4, Ontario Superior Court Justice Richard Lococo said DeMarco couldn’t rely on the defence of truth for his comments.
“Individual fragments of the advertisement arguably had some basis in fact but they were expressed and juxtaposed in a manner that I find to be inconsistent with the truth,” Lococo wrote.
“The clear implication of the advertisement is that at the time it appeared in the newspapers and/or the websites (that is from November 2009 to the time of trial), Mr. Daboll was allowed to practice law while being at that time on criminal probation and facing a further charge relating to ‘sex/personal relations clients wife.’”
Rejecting DeMarco’s argument that the law society findings could reasonably be considered convictions, Lococo also found that his claim on his web site that Daboll had been convicted of “more than one crime” defeated the truth defence.
Walter Osborn, who co-founded the National Coalition for Law Societies Reform with DeMarco, was also named as a defendant. Lococo, however, noted DeMarco was the “driving force” behind both web sites.
Lococo found the inflammatory nature of the language used in the newspaper ads and online constituted evidence of malice and noted “the most obvious indicia of malice in this case is the timing of the publication” right after Daboll collected his outstanding costs order against DeMarco. DeMarco knew about Daboll’s past well before November 2008, Lococo said.
As well as the $50,000 in damages, Lococo also issued a permanent injunction barring the continued publication of defamatory statements about Daboll.
“I’m not pleased with the decision,” DeMarco tells Law Times, noting he plans to appeal the ruling. He has also launched a negligence claim against Daboll.
His dirtylawyer.com web site states that its aim is “to publicly hold accountable the lawyers and their self-protecting, self-governing body for acts and actions that are ‘above the law,’” a mission DeMarco says he was fulfilling when he brought Daboll’s past into public view.
According to Lococo’s decision, DeMarco, who represented himself, made numerous references at trial to occasions dating back as far as the 1970s when he reported lawyers to the law society for negligence.
Lococo also noted that many of DeMarco’s submissions dealt with Daboll’s representation in his matrimonial case.
“In my view, the documents were referred to by Mr. DeMarco in furtherance of his apparent determination to re-litigate the issues that have already been dealt with in the matrimonial litigation and on the assessment of Mr. Daboll’s account or to ‘pre-litigate’ issues more properly dealt with in Mr. DeMarco’s separate negligence action against Mr. Daboll,” Lococo wrote.
DeMarco, meanwhile, insists Daboll never told him about his disciplinary record. But Daboll says he has never tried to hide his troubled past, the result of what he calls a “difficult patch in my life.”
“Maybe I can finally put that behind me,” he says. “At least it won’t be the only thing people find out about me rather than the fact I’ve been running a pretty successful litigation practice with thousands of satisfied clients.”
Daboll notes it upset him to search his name online knowing DeMarco’s web site would fill the first page of results. He lost clients as a result and says those dissatisfied with his family law practice would refuse to pay after seeing the contents.
“It got to the point where we would have to address that issue on virtually every assessment hearing,” Daboll says. “I think the decision is a good solid starting point to offer the legal profession the same sort of basic protection that everybody else in society would reasonably expect from this kind of vendetta.
It means lawyers who are otherwise good counsel and get mixed up with a bad client can have some recourse.”