The Bar is urged to crack down on misleading legal advertising

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

Now he wants it back.

The reason? The court — which is at arm’s length from the Law Society of Ontario — rejected a penalty proposal crafted between prosecutors and Diamond’s defense team. They agreed Diamond should be reprimanded and fined $40,000, a sentence the court found too lenient.

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

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

On this point, Diamond and his critics agree: neither endorses the law enforcement regime.

The biggest problem is “lack of enforcement by the bar,” says Paul Harte, a Richmond Hill-based medical malpractice lawyer who has been at the forefront of the fight to get the bar to take action against misleading advertising in the personal domain. injury bar.

After a decade of complaints about flagrant and rule-breaking conduct, little has changed, with some Ontario lawyers continuing to flout the rules that dictate how they can and cannot sell their services, according to him and other lawyers interviewed. Compared to the rewards that can come from mass advertising, a fine may simply represent the cost of doing business, they say.

“If the bar is not going to devote the time and resources to enforce the existing rules, then, in my view, that raises the question of whether the legal profession should continue to self-regulate,” Harte said, adding “they are not (self-regulated) in other jurisdictions.

Diamond’s own legal team, led by criminal attorney Brian Greenspan, filed a 172-page document filled with screenshots of other personal injury bar websites as evidence that “the kinds of statements that are likely to against the law society’s rules on publicity” are commonplace.

Another Diamond filing cited eight recent court rulings on advertising regarding misleading and inappropriate content featured on legal websites. All but one resulted in a reprimand.

Diamond argues that the allegations against him “reflect an unfair, selective and abusive approach by the bar” and are based on “long dated and corrected advertising. Others are commonplace and ubiquitous throughout the bar.

In an email responding to The Star’s questions about lawyers’ frustration, Law Society spokeswoman Jennifer Wing said the regulator remained committed to “thoroughly investigating alleged breaches of the rules regarding marketing and advertising and, if necessary, to take appropriate regulatory action in response.” Recent changes to the company’s rules of professional conduct have led to a period of heightened regulatory scrutiny of advertising, she said.

Although she said she could not speak to the specific facts of the Diamond case, Wing noted that the joint reprimand and fine proposal referenced an earlier decision that found leniency was appropriate in circumstances.

“During a period of transition, fairness argues that professions have time to respond to increased regulatory scrutiny. Past practices, which were against the rules but did not receive the same degree of regulatory scrutiny, are treated fairly in this context,” the court concluded. in this 2018 decision.

Nonetheless, Harte thinks this approach fuels public cynicism about lawyers.

When leading focus groups before jury trials, Harte increasingly comes up against the mindset that the litigation process is nothing more than a cash grab for lawyers. , a perception formed, in part, because “look how much money they spend on advertising.”

“And it harms my clients’ records because I have to start a lawsuit by sort of digging a hole.”

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

In 2017, Diamond told regulators his company paid $5 million a year to advertise on buses, billboards, print, TV and radio. In its decision rejecting the proposed reprimand and fine, the court said that, based on evidence and admissions, his misconduct “involved extensive advertising and marketing that intentionally misrepresented Mr. Diamond”.

Steve Rastin, a certified civil litigation specialist from Barrie who is also a past president of the OTLA, has filed numerous complaints with the Law Society about misleading advertising by lawyers.

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

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

Rastin suggests that while the bar is good at “developing policy and rules, sometimes it’s not so good at governing the cogs.”

“Either they have to decide the rules they have are wrong and get rid of them, or they have to enforce them. The problem we have now is that lawyers who are good and fair are handicapped in the way they operate, because they try to follow the rules, and they compete with people who don’t.

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