Toronto personal injury attorney Jeremy Diamond says he intends to accept the professional misconduct charges leveled earlier this week, explaining that he did not think his punishment would be beyond a reprimand.
“I was never aware and I hadn’t considered that the potential penalty could be more than a reprimand here,” Diamond said during a brief Ontario hearing on Thursday. “If I had known this was a possibility, I would never have admitted to misconduct, and I would have been heard.”
On Monday, instead of facing a disputed hearing, Diamond admitted that he had improperly marketed personal injury legal services he did not provide and that his namesake firm advertised “clearly and prominently”. Failed to disclose that Diamond & Diamond solicited thousands of potential clients for other fees.
Demonstrations filed in the proceedings showed that between 2013 and 2017, the firm referred more than 11,000 potential clients to other attorneys in exchange for hefty legal fees. Similar documents filed with the Law Society indicate that the firm has opened about 4,400 client files in the same period. According to the filing, the firm’s revenue from referral fees peaked at 59 percent in 2013 and declined to 29 percent by 2017.
Criminal lawyer Brian Greenspan, one of several lawyers representing Diamond, told the three-member panel on Monday that the charges his client has admitted were in the past and that, despite being admitted, no one intended to mislead. Or not to cheat. Greenspan said Diamond & Diamond has grown from a one firm with three lawyers to a firm with 51 lawyers that keeps 90 to 95 percent of its files in-house.
At Monday’s hearing, Diamond’s legal team and law society attorneys jointly submitted that a reprimand was a reasonable penalty and proposed Diamond pay $40,000 in costs. However, Malcolm Mercer, president of the Law Society Tribunal, said he was concerned that the proposed reprimand would amount to a slap on the wrist. Diamond essentially admitted that the firm was “in the referral business” and not in the business of practicing personal injury law, and that many people were deceived by the claims, Mercer said.
In its written cause on Wednesday, Mercer further wrote, “Subject to further submissions, we are inclined to conclude that the findings of professional misconduct in relation to these details raise issues of integrity and honesty,” it added. That this concern increases as a result. “Extent and duration of admitted misconduct”, which occurred between January 2013 and December 2017.
Mercer invited the parties to argue whether the proposed reprimand “would not defame the administration of justice or would otherwise be contrary to the public interest.” He said the panel is yet to decide on the issue.
There is no minimum or maximum penalty for lawyers found guilty of professional misconduct, and limits may include suspension or even dismissal. The previous tribunal has not accepted the joint submission on cost and increased the proposed penalty.
Brian Cameron, a personal injury lawyer who teaches advocacy at Queens University, said Thursday he is glad the law society is taking misleading advertising seriously, but he doesn’t think the reprimand sends a strong enough message.
Cameron, a former board member of the Ontario Trial Lawyers Association, said, “If things (Diamond) were about to turn out to be true, then reprimand is nowhere close to a fair sentence.” “A reprimand is one time for doing something stupid, or it’s relatively trivial, or you weren’t paying attention to your practice and someone working for you did something that was inappropriate.”
On Thursday, Greenspan said the panel’s “reaction took us completely by surprise” and that Diamond would seek to set aside its admission of misconduct in accordance with two key decisions from the Supreme Court of Canada.
Greenspan said the “regular” joint presentation on Monday was the culmination of two years of discussions with the law society. “Mr. Diamond had no appreciation or understanding that anything other than reprimands could result in confessions that were reached as a result of a series of compromises.”
Citing case law, Greenspan said that for a guilty plea to stand up, “an accused must be aware of the criminal consequences as well as the legally relevant collateral consequences.” Since that was not the case here, he argued, “we say that at this stage there is no option but to cancel this hearing and go back to the first class.”
Greenspan also said he would “reluctantly” ask Mercer to dissociate himself from any next move, arguing that he should never have sat on the panel in the first place. He did not say what would be the basis of that request.
On Thursday evening, Greenspan wrote in an email to Star that his comments made earlier in the day “speak volume” and “there’s more to follow on the iteration application.”
Mercer concluded the hearing on Thursday, saying the panel would consider its position and provide feedback. No time limit was given.