Personal injury lawyer was found guilty of professional misconduct for misleading advertising
Toronto personal injury lawyer Jeremy Diamond is appealing an Ontario Law Society Tribunal disciplinary panel ruling that says he must not practise law for three months and pay a $100,000 fine after being found guilty of professional misconduct for misleading advertising.
In a filing dated Thursday, April 13, Diamond says that the panel made a “number of fundamental errors of fact and law.”
Diamond’s lawyer, Brian Greenspan said in an interview: “We have taken the position and still take the position that Mr. Diamond has been treated unfairly, and in a way that is inconsistent with the way in which others who engaged in what we believe is even more serious conduct, the way in which they were treated either by invitations to attend for an informal session, or by way of reprimand.”
Diamond’s grounds of appeal
Specifically, Diamond argues that:
- The panel erred in dismissing Diamond’s motion to stay the hearing, given evidence showing the allegations against Diamond were based on “dated and long-remedied advertising” or were “commonplace and pervasive throughout the bar.” As well, Diamond contends the Law Society of Ontario has treated similar conduct of others, “in some cases, [with] far more egregious conduct,” differently, “resulting in a fundamentally unfair enforcement regime.”
- The panel erred in dismissing Diamond’s motion of recusal, claiming that the chair of the panel, Malcolm Mercer, had a “conflict of interest or bias.” The recusal motion focused on comments made by Mercer in the news and on social media, including Mercer’s appearance in and promotion of a video “that ridiculed and derisively portrayed the Diamond & Diamond firm.”
- The panel erred in rejecting a submission that Diamond be given a reprimand, as recommended by the prosecutors and Diamond’s defence team, on the grounds that the sentence was too lenient “in the context of failures of honesty and integrity in communications to very large numbers of potential clients over a lengthy period of time.” The appeal says there was “no basis” to find that the proposed sentence “would bring the administration of justice into disrepute or is otherwise contrary to the public interest” or that it was “so unhinged from the circumstances of the offence” that its acceptance would lead reasonable people to believe that the proper functioning of the justice system had broken down.
- The panel erred in dismissing Diamond’s motion to withdraw his admissions following the panel’s decision not to accept the joint submission. The evidence before the panel “established that Diamond was unaware of a legally relevant consequence of his admission of professional conduct and that he suffered prejudice as a result.”
- The panel erred in exercising its discretion to impose an “excessive and unfair penalty.” It also erred in stating that the law society “in its penalty submissions did not propose any specific length of suspension nor mention any particular cases.”
Greenspan said that his client feels that “there really is a sense of an inconsistent, and almost discriminatory, way in which the law society has both engaged in its discipline function.” He added that every time “even a minor issue” was brought to the attention of Diamond, the reaction was “How do we fix it?” and “How do we fix it efficiently, quickly and to your satisfaction?”
Greenspan noted that “after careful and thoughtful discussions that lasted great deal of time and involved a great deal of energy,” the two parties had arrived at a joint submission that was approved by senior discipline counsel. Instead, it was replaced by the panel’s decision, “which persisted in proceeding with discipline that we think at the end of the day is just seriously wrong, draconian and inappropriate.”
In his appeal motion, Diamond asks for:
(a) An order setting aside the dismissal of Diamond’s stay motion and staying the proceeding against him;
(b) In the alternative to (a), an order setting aside the penalty and replacing it with a reprimand in accordance with the joint submission;
(c) as an alternative to imposing the original reprimand, an order setting aside the dismissal of the motion to recuse Malcolm Mercer from the panel and to return the matter to the hearing division for a “differently constituted hearing panel, for penalty submissions;”
(d) as yet another alternative, an order setting aside the dismissal of the motion to withdraw his admissions, allowing Diamond to withdraw his admission of professional conduct and return the matter to the hearing division for further proceedings.
Diamond is the face of Diamond & Diamond, known for billboards, bus ads, and TV and radio spots with slogans such as “Nothing is tougher than a diamond.” In his 2021 statement of admission, Diamond acknowledged before the panel that between 2013 and 2017, he improperly marketed personal injury legal services by failing to disclose “clearly and prominently” that Diamond & Diamond referred thousands of potential clients to other lawyers for fees.
Ordered to not practise for three months and pay $100,000 fine
While Diamond has been ordered not to practise law for three months, starting April 28, it’s not an outright “suspension.” Due to the “extraordinary circumstances” of the facts in this case, the panel decided to prohibit Diamond from practising law or providing legal services for three months, but he “was not suspended,” the March 29 panel decision says.
Still, Diamond “must comply, as if suspended, with ss. 2 and 4 of the Law Society’s Guidelines for Lawyers Who are Suspended or Who Have Given an Undertaking Not to Practise.”
The tribunal, an independent body that hears and decides regulatory cases between the Law Society of Ontario and Ontario lawyers or paralegals, further ordered that during those three months, the firm’s website is to prominently indicate that Diamond is not permitted to practice law or provide legal services.
During this period, Diamond must also not be referred to “in new or renewed marketing or advertising, in any form, that had not been arranged for prior to the date of these reasons.”
The $100,000 fine imposed on Diamond is the maximum permitted, the panel said, adding that it decided not to only fine Diamond as it concluded: “A fine would be seen just as a mere cost of doing business which would not sufficiently serve the penalty goals of specific deterrence, general deterrence and maintaining public confidence.”
The tribunal also ordered that Diamond pay costs to the Law Society in the amount of $40,000 on or before the deadline of May 10, 2023. The deadline may be extended by the society, and interest will be charged on any overdue portion at a rate of five percent annually.
Tribunal cites necessity of showing that misconduct is taken seriously
While of “limited impact,” the panel says, the order that Diamond not practice for three months is “necessary to convey to the professions and the public that the professional misconduct that was admitted and found is treated seriously by the tribunal.” It also informs the public that the penalty reflects the seriousness of the offence.
“The effect of a suspension on Diamond & Diamond marketing would appear to be very significant given that . . . Diamond has been the main face of the firm,” the decision says. On the other hand, it does not appear that Diamond provides much in the way of legal services to clients. A suspension of Diamond would have a “much greater effect on the other lawyers in Diamond & Diamond than on Diamond himself.”
According to an agreed statement of facts, Diamond’s role consisted “mainly of managing the business of the firm.” He typically reviews cases and determines whether the firm will take on the file, then passes it on to lawyers who would do the legal work.
The panel says it made its decision “with some hesitation considering the use that might be made of this decision in future cases.” However, among the reasons for this approach, the panel said it avoids the “collateral consequences of a suspension order on other lawyers at Diamond’s firm by not suspending his licence.”
Greenspan added that his client will be asking for a stay of the penalty until the matter is dealt with by the five-member appeal tribunal, where the matter can be relitigated.