Neinstein faces new hearing as case ends

Toronto litigator Gary Neinstein is “grateful” after the Law Society of Upper Canada quietly withdrew long-standing sexual harassment allegations against him even as he faces a new set of unrelated disciplinary proceedings.

“It’s been a long, historical road, and he’s grateful that the matter has ended without any blemishes on his reputation,” says Brian Greenspan, who represents Neinstein.

Greenspan notes his client was glad to see the sexual harassment allegations come to an end after a decade filled with unwanted “negative attention.” He adds that his client has “never not practised” law since the matter first arose.

“This has really impacted his life and reputation in a negative way, but he is glad his reputation is now fully restored.”

The law society issued the decision on Oct. 18 after LSUC counsel requested that the sexual harassment allegations be withdrawn. The move follows a critical review last year of an LSUC hearing panel’s decision in the case by the Ontario Court of Appeal.

The panel originally heard Neinstein’s case in 2004 and ordered his subsequent disbarment. But the Court of Appeal told the LSUC to convene a new hearing panel to hear the matter last year.

Why the law society has since decided to drop the matter is
unclear as the regulator won’t provide details. “The notice of application regarding Mr. Neinstein has been withdrawn and the law society is not pursuing that particular matter further,” says LSUC spokesman Susan Tonkin.

Asked to explain why, she says she has no further information to disclose.
The LSUC hearing panel originally disbarred Neinstein in 2004 for the alleged sexual harassment of C.T., a client, and S.G., a secretary in his law office.

L.D., a family friend and client, also alleged Neinstein sexually harassed her in January 1998, but the panel rejected her claims.

“This was a classic ‘he said-she said’ case,” Ontario Court of Appeal Justice David Doherty wrote in Law Society of Upper Canada v. Neinstein. “The complainants testified about various acts of sexual harassment. The appellant denied those acts had occurred.

Other witnesses were called, and while their evidence was important, it was clearly secondary to the evidence of the main protagonists.”

C.T. met and retained Neinstein in 1988 while he was representing her brother in an accident case she was also involved in. She claimed Neinstein was “overly friendly” toward her, made sexual comments, and touched her inappropriately.

She also alleged the pair had a consensual sexual relationship from August 1990 to mid-December of the same year. After her brother’s lawsuit was settled in 1997, she complained to the LSUC.

Neinstein denied all of the allegations, including consensual sex. He testified that C.T. continued to retain him until 1994 when he settled her claim. He also said that while he had done his best for her, there were “significant problems” with her accident claim.

The second complainant in the case, S.G., also claimed Neinstein had made inappropriate comments and gestures toward her while she worked at his firm from September 1990 to May 1991. Neinstein denied the allegations.

One of the many odd twists in the case included the fact that Steve Ellis, a former Immigration and Refugee Board adjudicator, was a lawyer at Neinstein’s firm at the time S.G. alleged the sexual harassment took place.

Ellis himself faced allegations that he had attempted to extract sexual favours from a South Korean refugee claimant and received a sentence of 18 months in jail following his highly publicized trial last year.

S.G. claimed she mentioned Neinstein’s alleged sexual harassment to Ellis, but he denied he spoke to her about it.

Prior to this unusual twist of fate, Doherty ruled in March of last year that the original LSUC hearing panel had failed to give reasons as to why it had rejected Neinstein’s version of the events.

Noting the panel had “effectively excluded a large body of evidence from its credibility analysis,” Doherty said its reasons for its findings were gravely inadequate and made an appeal review impossible.

In yet another unusual twist, the original hearing panel that heard Neinstein’s case in 2004 came under fire for the actions of one of its members, Ottawa lawyer George Hunter.

In 2007, Hunter, also a former LSUC treasurer, was found guilty of professional misconduct over a sexual affair he had with one of his clients at the same time he was hearing Neinstein’s case. He received a 60-day suspension.

But Doherty, while critical of the panel’s lack of reasons, noted that accepting allegations of bias by Hunter would be stretching “the concept of a reasonable apprehension of bias beyond all practical limits.”

Doherty went on to allow Neinstein’s appeal of an earlier Divisional Court judgment that had restored his disbarment and sent the case to a new hearing with a different panel.

In keeping with the case’s strange twists and turns, nearly seven months before the LSUC dropped the sexual harassment matter, it issued an additional and unrelated set of professional misconduct allegations.

“A notice of application was issued in March 2011,” says Tonkin. “Hearing dates are scheduled for the week of May 7, 2012.”

For his part, Greenspan says the matter is currently at the disclosure stage. “At this point, we have not provided any response,” says Greenspan of the new allegations. “But any suggestion of improper conduct will be vigorously defended.”

The LSUC alleges Neinstein engaged in professional misconduct by accepting retainers from six clients, all of whom were involved in a car accident and one of whom suffered injuries. According to the law society, the situation created several conflicts for Neinstein.

He allegedly helped two of the six clients, M.D. and V.B., retain attorneys for personal care while representing V.B. and another client, E.M., in an application to appoint them as guardians of the person and property of his client, M.D., in 2010.

“After all these years and all the attention, it’s regrettable that he had to be exposed to that,” says Greenspan. “He has a long and admirable reputation and has served his clients admirably.”

For more information, see "LSUC should drop Neinstein case: lawyer" and "Court overturns Neinstein's disbarment."

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