The Divisional Court has reduced to three months a suspension against Toronto litigator Gary Neinstein, who was originally disbarred by a Law Society of Upper Canada hearing panel in 2004 for sexual harassment.
“The law society was understandably very concerned about general deterrence in these proceedings,” wrote Justices Katherine Swinton and John Murray in the recently released decision.
“There is no question that the conduct of [Neinstein] was serious and deserving of sanction. His conduct reflects both disrespect for the two complainants and an abuse of power, and it reflects negatively on the reputation of the profession as a whole.
“Therefore, a reprimand, in the circumstances, would not be a sufficient penalty.”
But the judges said a 12-month suspension issued by a law society appeal panel was too harsh.
“The penalty of a 12-month suspension is excessive and unreasonable in the circumstances, given the historical context within which the conduct occurred, the range of penalties for professional misconduct of this nature, and the numerous mitigating factors in this case.”
The judges noted that the longest penalty given by the law society for sexual harassment was 18 months, and that case involved public safety concerns and the absence of mitigating factors. In another case, a six-month penalty was given following a second offence.
Swinton and Murray also pointed out that the professional misconduct happened between 1988 and 1991, and the law society didn’t pass a rule dealing with sexual harassment until July 1992.
Mitigating factors in Neinstein’s favour included a clear record in a lengthy career, involvement in a gender sensitivity training program, and an office redesign making the space “more transparent,” wrote the judges. It also was established that Neinstein was unlikely to re-offend.
The Divisional Court in February 2007 set aside a law society appeal panel ruling ordering a new hearing for Neinstein, but upheld part of the appeal panel’s order that set aside the penalty of disbarment.
The appeal panel in June 2007 followed the court’s ruling to change its formal order to show that Neinstein should face a 12-month suspension if found guilty of professional misconduct.
Neinstein cross-appealed the amended penalty order to the Divisional Court. His request seeking leave to present new evidence - an affidavit of his son Jeffrey - was denied.
Neinstein argued that he should not receive a suspension at all for the professional misconduct, which involved a client and a former employee.
At the hearing panel, his lawyer had suggested a three- to six-month suspension was appropriate, wrote Swinton and Murray.
Brian Greenspan, Neinstein’s current lawyer, told Law Times last year that the penalty should “go downwardly” at this point due to further mitigation through the passage of time and his client’s continued legal work.
Greenspan says a leave to appeal application will be issued to the Court of Appeal, and he expects the three-month suspension to be stayed until that matter is dealt with.
He says the further appeal bid will address the application of R. v. W.D. to discipline hearings, as the law society appeal review panel found that W.D. applied, with some alterations to the standard. The majority in the Divisional Court, however, found that W.D. wasn’t applicable.
“It’s really an unsettled issue, and therefore there is obviously some prospect of leave being granted on that issue,” says Greenspan.
The application of R. v. Sheppard also will be at issue, he said.
Tom Curry of Lenczner Slaght Royce Smith Griffin LLP, who acted as counsel for the law society, says the law society sought a 12-month suspension because the matter involved two complainants, “and that the conduct was serious enough to justify the length of suspension that had been imposed at the appeal panel.”
The fresh evidence that Weinstein sought to introduce at the Divisional Court related to the negative impact the law society proceedings have had on the lawyer’s personal and professional life.
The law society argued the material was irrelevant, and the judges noted that Neinstein didn’t say whether the evidence was issued to the appeal panel, although it appeared that it would have been available for that purpose.
“The fresh evidence that [Neinstein] seeks to adduce is of very limited evidentiary value, and we are not satisfied that it could reasonably, when taken with the other evidence in the record, be expected to have affected the result,” wrote the judges in refusing the request.
“Evidence of the impact of the proceedings on [Neinstein] should have come from him or a medical professional who has treated him. Moreover, the adverse effects on his professional life are just as likely to have been the result of the finding of professional misconduct as from the penalty of disbarment.”
Neinstein, who currently practises civil litigation at his firm Neinstein & Associates, declined Law Times’ request for comment on the decision.