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.
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.