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Diamond & Diamond refutes ‘full frontal assault’

Cover Story
|Written By Shannon Kari

An Ontario Superior Court judge is urging the Law Society of Upper Canada to provide more clarity about the rules for lawyers practising independently yet also in association under a common business name.

"What should be on a document when you have lawyers practising in association, which is now more common?

The suggestion came out of a motion heard on Aug. 17 related to the business structure of Diamond & Diamond Personal Injury Lawyers, a high-profile firm based in Toronto.

Justice James Diamond (no relation to the law firm) stated that the law society might “revisit” its decision not to provide some guidance on the questions raised in the motion before the court.

Aviva Canada Inc. invoked a section of Rule 21 of the Rules of Civil Procedure in asking the court to determine a question of law in an ongoing automobile accident-related litigation.

The statement of claim filed on behalf of plaintiff Alannah Cautius lists the firm as Diamond & Diamond Personal Injury Lawyers and counsel as Corey Sax. In correspondence related to the proceeding, a letter sent last year had the firm’s name at the top of the page and referred to “CJS Law Professional Corporation, Practising Independently and not in Partnership.”

After an inquiry this spring by Aviva’s lawyer, Alan Rachlin, a response sent by Sax indicated the letterhead had been amended. It now states he’s practising in association and not in partnership.

“Who is legally accountable?” asked Rachlin, a partner at Rachlin & Wolfson LLP. “What should be on a document when you have lawyers practising in association, which is now more common? The rules have not been amended to reflect that,” he said in court last week.

The public face of Diamond & Diamond is Jeremy Diamond, who appears prominently in extensive advertising in the media, at professional sports events at the Air Canada Centre, and on the back of public transit buses.

Its web site lists its official name as “Diamond & Diamond Personal Injury Lawyers” and shows its 10 lawyers pictured under the heading “The Diamond & Diamond team” with brief biographies.

Provincial records show that “Diamond & Diamond” is registered under the Business Names Act and the corporate owner is Sandra Zisckind Law PC.

On her personal LinkedIn page, Zisckind, who’s married to Jeremy, refers to herself as the managing partner of the firm.

Rachlin told the court that the full name currently listed on its web site and in its correspondence isn’t registered as a business.

“It doesn’t exist,” he said.

Adding “Personal Injury Lawyers” to its name “may be part of the marketing,” the judge responded. “I am not sure it means anything” in terms of the legal issues before the court, he added.

Aviva suggested in written arguments that “Diamond & Diamond” doesn’t appear to fit within the definition of a law firm under the Rules of Professional Conduct and questioned whether the name should appear on a statement of claim.

The motion was “ill-conceived” and targeted at a “hypothetical issue that appears to be conceived out of whole cloth by Aviva and its counsel,” responded Kris Borg-Olivier, the lawyer for Diamond & Diamond.

Far from being confusing, the lawyer for Cautius is “Corey Sax of the Diamond & Diamond firm,” wrote Borg-Olivier, of Paliare Roland Rosenberg Rothstein LLP.

The judge concluded the Aviva motion couldn’t succeed because it didn’t fit within the scope of the rule. “Rule 21 is a tool available to counsel and in turn to the court, to determine questions of law raised by the pleadings,” he stated in a brief written decision.

In reference to attempts by Aviva to determine the “type of legal entity to describe D&D based on lawyers apparently practising in independent association,” the judge wrote there appeared to be “some merit” to the inquiries. However, it wasn’t an issue to be “determined by the allegations raised” in the statement of claim, he concluded.

The court heard that Rachlin had informed the law society about the issues he was raising. “They said if you don’t want to make a complaint, there is nothing for us to do,” he said.

“I am surprised they took no position,” the judge replied.

“I don’t think self-governance should be kick-started only by a complaint,” he said.

The judge’s written decision stated it was unfortunate the LSUC didn’t participate and the ruling dealt only with the application of the specific section of Rule 21.

Denise McCourtie, a spokeswoman for the LSUC, said there’s no specific requirement for a law firm to publicly state its specific business structure, such as a limited liability partnership or an association. However, all marketing “must be true, accurate, and verifiable and must not be misleading, confusing or deceptive,” she said.

Diamond & Diamond sought $7,000 in costs to defend the motion. “This was a full frontal assault on the firm. There was no choice but to defend itself,” Borg-Olivier said in court. The judge ultimately awarded $5,000 in costs against Aviva.

  • Business Owner

    DK Baby
    Shocking how an insurance company is suing the firm that probably sues them on a daily basis. Maybe they're sick of losing cases and millions in settlements and taking a stab with this pathetic stance. Diamond & Diamond fights relentlessly for their clients against these billion $+ insurance companies that will deny insurance claims with any tiny little loop hole they can find and these poor, injured people have to go to war with corporate when the claim should just be paid to help the 'common-man' survive and pay their bills. Shame on these insurance companies and anyone that looks down on Diamond & Diamond for what they do...which is fight for us when we need them!

    Aviva stop wasting your time with these pathetic suits and focus on what you need to do to improve your own business and industry. Count your own money when it comes in monthly in the form of premiums and be happy to pay regular people who need it when they're entitled.
  • Communications Director

    Benny Anbar
    I am shocked that a judge would even allow this claim to go before the courts. I don't have a legal background, but it just doesn't seem fair to Diamond and Diamond to be dragged through the mud on a baseless claim by Aviva?!? The insurance companies are big bullies and this is a perfect example of them trying to intimidate people. Bravo to Diamond and Diamond for being a pioneer in the industry.
  • ceo

    ruth honigsberg
    its obvious ms priday has some axe to grind using completely erroneous information to malign a law firm that has changed the face of personal injury law......ttc is certainly no great fan of personal injury law firms while at the same time benefitting greatly from their priday would be advised to understand the overall industry a little more clearly and get her facts straight before making absurd comments
  • Legal ads

    Adam Rosenberg
    Just wanted to add a comment here about this article. Rachlin is the lawyer for bergmanis vs diamond suit. He clearly had Ulterior motives for bringing this motion and I wonder if Aviva knows this. Is Rachlin billing Aviva or bergmanis preyra for this ill will motion which he lost? If I were diamond I'd move to have him off every file as there's a huge conflict here. In terms of the advertising I think that the industry should be thanking diamond for improving and transforming the industry. Funny how certain law firms have to pay off social workers, hospitals and doctors which is a disgrace to our profession. At least we know how diamond gets their files. Haters keep hating but these people did wonders for our profession and access to justice.
  • Entrepeneur

    D.C Fukbook
    Once again this article is much ado about nothing..I find it sad, and pathetic that others in this industry continue to attack this firm, as if Marketing your business and being an entrepeue is a criminal act...The only thing that needs to be re examined is the hypocrisy of Darcy Merkur, PIA, and comments above , these same individuals are , and have been eating dust from industry leaders Diamond and Diamond for years on end..pretty pathetic attempt to bash their industry leader , who has actually made the industry as whole more visible..and improved the rights of victims drastically .They should be thanking Jeremy Diamond and kissing the ground he walks on for being a pioneer in this industry and teaching them what it took 40 years to realize..This is also an individual who tirelessly gives back to the community.
  • ceo

    John Mann
    Norma are you referring to the city in which you reside?
    So these advertising efforts assist in funding your city, instead of the highly mismanaged bureaucratic nightmare that employs you. Even better.

    ...and that pool funds the various services which you utilize as a resident on a daily basis?

    Your hypocrisy knows no bounds
  • Truth be told

    After reading this ridiculous article by mr Shannon Kari it seems as if he is desperate for material to write about. This motion was ridiculous and most firms in city operate like diamond firm does. Once again sour grapes and people in this industry should focus on the legislative changes instead of a firm that dominates the PIA in marketing. They have revolutionized the industry and people should just accept it and try and compete on their level. Seems as if Rachlin enjoys losing every battle to diamond's high profile lawyers. This article is a joke.
  • lawyer

    norma priday
    Please correct Mr. Mann's comment. TTC does not earn from advertising on the system - all of that money goes to the city and we are not paid by the city. The lawyers often wish we were -- the city salaries are generally higher, there are 2 extra statutory holidays, and the benefits are often better. Sadly, we are not and none of that money goes to the TTC. The contracts with entities such as Mediacom, Astral, etc., for all ads on the system and on the bus shelters, which the City also controls, are all negotiated with and signed by the City.
  • ceo

    John Mann
    This seems like a non-story. Ms. Priday's comment above is rather ironic as her salary is paid by these advertising efforts.
  • PI Lawyer

    Dave Wilkins
    Whenever there is an article about personal injury or any related matters on these sites it is often about this firm. I have read two alone on law times this summer and two from Mr Kari. I feel no "shame" to our profession by their activities. This firm has obviously marketed themselves well. To be criticized by their peers constantly, such as Darcy Merkur of the PIA is rather transparent. The PIA also advertises heavily across this province. This sort of hypocrisy is nauseating.
  • barrister & solicitor

    norma priday
    This case raises a VERY important point. I am often told of people who, influenced by the media barrage from this firm, call them knowing nothing about them, or any other firm. They then end up with a law firm to whom the case was "referred" and D&D collects a fee. Surely this is misleading the public, particularly given the onslaught of advertising they do which, along with the referral fees, must raise their costs. LSUC, given the season, I urge you to " step to the plate" as Judge Diamond suggested.. Darcy Merkur's recent piece on advertising --which his firm also does, but very differently -- seems aimed directly at this practice. Lack of full disclosure in advertising shames our whole profession. I do defence work so I have no interest in this other than keeping my profession from conduct which needs examination.

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