Toronto personal injury lawyer Jeremy Diamond says he intends to recant an admission to professional misconduct charges he made earlier this week, explaining that he had not considered that his penalty would go beyond a reprimand.
“I was never aware and I did not contemplate that a potential penalty could exceed a reprimand here,” Diamond said during a brief Law Society of Ontario hearing on Thursday. “Had I known that that was a possibility, I would never have admitted to the misconduct, and would have had a hearing.”
On Monday, rather than face a contested hearing, Diamond admitted he had improperly marketed personal injury legal services that he did not provide and that his namesake firm’s advertisements failed to disclose “clearly and prominently” that Diamond & Diamond referred thousands of potential clients to other lawyers for fees.
Exhibits filed at the proceeding showed that between 2013 and 2017, the firm referred more than 11,000 would-be clients to other lawyers in return for hefty legal fees. The same documents filed with the law society indicate the firm opened about 4,400 client files in the same period. The firm’s revenue from referral fees peaked at 59 per cent in 2013 and had dropped to 29 per cent by 2017, according to the filing.
Criminal lawyer Brian Greenspan, one of several lawyers representing Diamond, told the three-member panel Monday that the allegations his client admitted to were in the past and, despite the admission, no one intended to mislead of deceive. Diamond & Diamond has evolved and has grown from a firm with three lawyers to one with 51 lawyers who keep between 90 and 95 per cent of files in house, Greenspan said.
At Monday’s hearing, Diamond’s legal team and law society counsel jointly submitted that a reprimand was the appropriate penalty and proposed Diamond pay $40,000 in costs. However, Malcolm Mercer, chair of the Law Society Tribunal, said he was concerned that the proposed reprimand would amount to a slap on the wrist. Diamond had essentially admitted that the firm had been “in the referral business” and not in the business of practising personal injury law, and many people had been duped by the claims, Mercer said.
In his written reasons dated Wednesday, Mercer further wrote, “subject to further submissions, we are inclined to conclude that the findings of professional misconduct in respect of these particulars raise issues of integrity and honesty,” adding that this concern is increased as a result of the “extent and duration of the admitted misconduct,” which took place between January 2013 and December 2017.
Mercer invited the parties to argue whether the proposed reprimand “would not bring the administration of justice into disrepute or otherwise be contrary to the public interest.” He added the panel had not yet decided the issue.
There are no minimum or maximum penalties for lawyers found guilty of professional misconduct, and the range can include suspension or even disbarment. Past tribunals have not accepted joint submissions on costs and have increased proposed penalties.
Brian Cameron, a personal injury lawyer who teaches advocacy at Queen’s University, said Thursday he’s glad the law society is taking misleading advertising seriously but doesn’t feel a reprimand sends a strong enough message.
“If the things (Diamond) was going to plead guilty to are true, then a reprimand is not near appropriate punishment,” said Cameron, a past board member of the Ontario Trial Lawyers Association. “A reprimand is for doing something stupid once, or it’s relatively trivial, or you weren’t paying attention to your practice and someone who works for you did something that was inappropriate.”
On Thursday, Greenspan stated the panel’s “reaction took us by total surprise” and that Diamond will be seeking to set aside his admissions of misconduct in accordance with two key Supreme Court of Canada rulings.
Greenspan said the “routine” joint submission put forward Monday was the culmination of two years of discussions with the law society. “Mr. Diamond did not have an appreciation or understanding that anything other than a reprimand could have been a consequence of the admissions which were reached as the result of a series of compromises.”
Citing case law, Greenspan said that for a guilty plea to stand, “an accused must be aware of the criminal consequences as well as the legally relevant collateral consequences.” Since that wasn’t the case here, he argued, “we say there is no alternative but to abort this hearing at this stage and go back to square one.”
Greenspan also said he will “reluctantly” ask Mercer to recuse himself from any further next step, and will argue he should never have sat on the panel in the first place. He did not say what the grounds would be for that request.
On Thursday evening, Greenspan wrote in email to the Star that his comments made earlier in the day “speak volumes” and that there is “much more to follow on the recusal application.”
Mercer ended the hearing Thursday saying the panel would consider its position and provide a response. No time frame was given.