More than half of the costs of proceedings were based on unfounded allegations, the hearing division found
The Law Society Tribunal’s hearing division said the Law Society of Ontario should pay costs of $46,000 to a real estate lawyer, after finding that more than half of the costs of proceedings were based on unfounded allegations.
The decision, Law Society of Ontario v. Rothman, 2020 ONLSTH 60, says that while the law society’s conduct in proceeding with unfounded allegations “was not malicious or in bad faith,” about 65 per cent of the case revolved around allegations that did not pan out.
“The law society had reasonable justification for initiating the firm name and specialization allegations but that did not give it licence to add on the other allegations that were objectively without grounds,” said the decision, written by Barbara Murchie.
The LSO had accused lawyer Shayle Rothman of having misleading advertising, particularly the firm name’s (RealEstateLawyers.ca LLP,) the size of the firm, the flat fees, use of the “specialty” description. Rothman was also accused of flouting the decision of a bencher committee in choosing the firm’s name.
The tribunal found a mistake in the fee description in a mailer, and the rest of the allegations were dismissed. One panel member did dissent on whether the name RealEstateLawyers.ca LLP was misleading. (Law Times wrote about the issue of fixed fees in real estate advertisements last year.)
“Rothman was not denied the right to use RealEstateLawyers.ca LLP as his firm name, because the law society did not have the authority to do so. . . .The firm size and firm price allegations were truly minimal in nature and not demonstrably misleading. There was no public interest protection in having them advanced. The allegations were fact-specific and time consuming to hear and consider, but without value for the development of jurisprudence,” said the hearing division. “The law society proceeded with them against a licensee who sought guidance, fully co‑operated, made changes the law society required and operated a client-oriented website that offered information and cost calculations that benefitted clients who were considering using his firm's services. Rothman was forced to defend at significant cost.”