Law society urged to crack down on misleading legal ads

Last year, Jeremy Diamond, Toronto’s best-known legal marketer, was found guilty of professional misconduct after telling a law society disciplinary panel that he had for years engaged in misleading advertising practices.

Now he wants to take that back.

The reason? The tribunal — which operates arms length from the Law Society of Ontario — rejected a proposed penalty worked out between prosecutors and Diamond’s defense team. They agreed Diamond should receive a reprimand and pay a $40,000 fine, a penalty the tribunal said was too lenient.

His critics, including several senior lawyers, applauded the move, calling a reprimand a “sweetheart deal” when a suspension was warranted.

Diamond, on the other hand, will argue this week that he would never have admitted to professional misconduct had he known he could face a penalty more severe than a reprimand.

On this point Diamond and his critics agree: neither approve of the law society’s enforcement regime.

The larger issue is “the lack of enforcement by the law society,” says Paul Harte, a medical malpractice lawyer based in Richmond Hill who has been at the forefront of the fight to get the law society to take action on misleading advertising within the personal injury bar.

After a decade of complaints about egregious, rule-breaking conduct, little has changed, with some Ontario lawyers continuing to blur the rules that dictate how they can and cannot sell their services, he and other lawyers interviewed say. Compared to the rewards that can flow in from mass advertising, a fine may simply amount to the cost of doing business, they say.

“If the law society is not going to spend the time and resources necessary to enforce the existing rules, then, in my view, it raises whether the legal profession should continue to be self-regulated,” said Harte, adding “they’re not (self-regulated) in other jurisdictions.”

Diamond’s own legal team, led by criminal lawyer Brian Greenspan, filed a 172-page document filled with screenshots from other personal injury bar websites as evidence “the sorts of statements that likely run afoul of the law society’s rules pertaining to advertising” are commonplace.

Another Diamond filing cited eight recent tribunal advertising decisions relating to the misleading and improper content featured on legal websites. All but one resulted in a reprimand.

Diamond argues the allegations against him “reflect an unfair, selective, and abusive approach by the law society,” and are based on “dated and long-remedied advertising. Others are commonplace and pervasive throughout the bar.”

In an email responding to the Star’s questions about the lawyers’ frustration, law society spokesperson Jennifer Wing said the regulator remains committed to “thoroughly investigating alleged violations of the rules regarding marketing and advertising, and, where justified, taking appropriate regulatory action in response. ” Recent changes to the society’s rules of professional conduct have led to a period of increased regulatory scrutiny on advertising, she said.

Although she said she could not speak to the specific facts of the Diamond case, Wing noted that the joint proposal for a reprimand and fine referred to a previous ruling that found leniency was appropriate in the circumstances.

“During a period of transition, fairness argues for time for the professions to react to increased regulatory scrutiny. Past practices, which were contrary to the rules but which did not attract the same degree of regulatory scrutiny, are fairly dealt with in that context,” the tribunal found in that 2018 decision.

Nevertheless, Harte believes that approach is fueling public cynicism about lawyers.

When he conducts focus groups in advance of jury trials, Harte increasingly encounters a mindset that the litigation process is nothing more than a cash grab for lawyers, a perception formed, in part, because “look at how much money they’re spending on advertising .”

“And that hurts my client’s cases because I have to start a trial by sort of digging out of a hole.”

(Harte, a past president of the Ontario Trial Lawyers Association, notes that he himself doesn’t advertise and doesn’t have to. “I don’t have a dog in this fight,” he said.)

In 2017, Diamond told regulators that his firm paid $5 million annually to advertise on buses, billboards, print, TV and radio. In its decision rejecting the proposed reprimand and fine, the tribunal said that based on evidence and admissions, his misconduct “involved substantial advertising and marketing that intentionally misrepresented Mr. Diamond’s practice and expertise.”

Steve Rastin, a Barrie-based certified specialist in civil litigation who is also a former president of the OTLA, has filed numerous complaints with the law society in relation to misleading advertising by lawyers.

The current state of advertising, he said, has created an environment where lawyers with superior marketing skills are taking clients from good lawyers who are being driven out of business. That affects the quality of legal representation.

“When a good lawyer stops acting for the public, because he can’t keep up in the current environment, that’s not in the public interest.”

Rastin suggests while the law society is good at “making policy and rules, it’s not so good sometimes at nuts and bolts governance.”

“Either, they need to decide that the rules they have are wrong, and get rid of them, or enforce them. The problem we have now is that lawyers who are good and fair are handicapped in how they operate, because they’re trying to follow the rules, and they’re competing against people that don’t.”

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