By Julius Melnitzer | December 16, 2024
Far be it from me to judge whether a reprimand was an appropriate sanction for Jeremy Diamond’s misconduct, though I’m a firm believer that the initial Law Society Tribunal that heard his case had no business refusing to let him withdraw his admissions of guilt after rejecting a joint submission for the reprimand. This being said, last week’s LST reasons accepting the reprimand that the first tribunal had turned down read like a dancer whose performance was choreographed by a fire in the seat of their pants.
For those of you for whom this item of business has not been top of mind, here’s a brief summary of the proceedings so far: Diamond faced allegations that between 2013 and 2017, he improperly marketed personal injury legal services that he did not provide, failing to properly disclose that his firm, Diamond & Diamond Lawyers LLP, had referred thousands of clients to other lawyers who compensated the firm for the referrals. Negotiations between Diamond and the Law Society of Ontario led to a settlement: in the context of a joint submission that a reprimand was an appropriate penalty, Diamond admitted that his firm’s marketing did not “genuinely reflect” the quality of its services or performance generally. But the panel asked to accept this recommendation, chaired by Macolm Mercer, refused to accept a punishment it characterized as a “slap on the wrist” and refused to allow Diamond to withdraw his admissions. The panel subsequently imposed what amounted to a three-month suspension, a $100,000 fine and a costs order. But an appeal panel overturned the decision, finding that Mercer had demonstrated the potential for bias against Diamond with two tweets in 2017 that derisively referred to advertising practices that included an implicit reference to Diamond & Diamond. The panel sent the matter back to the LST for a new hearing.
The new panel released its decision on December 6. It accepted the joint submission and imposed a reprimand (as well as a $40,000 costs order). But the panel’s convoluted reasons resemble the contortions of someone with an inviolable itch: short of an explicit statement to the effect that the panel believed a reprimand was not punishment enough, it’s readily apparent that this is exactly what they believed. But, arguably, that’s not their place to impart – not only because it’s unfair to Diamond but because it undermines public confidence in the regulation of lawyers.
UIltimately, the panel concluded that a reprimand “would not lead a well-informed member of the public to conclude that the sanction was so unhinged from the relevant circumstances so as to indicate that the system of professional regulation had broken down”. To be sure, the panel went through all the relevant factors and the legal balancing act necessary to arrive at this conclusion. On close examination, however, the reasoning amounts to nothing more than sophistry.
The misconduct, the panel found, was “long and widespread” and implicated Diamond’s “integrity and honesty”, so much so that if the panel’s “task was to determine the appropriate remedy, then a reprimand might not appear to be adequate, particularly for the purpose of restoring the confidence of the public in the administration of justice.” Indeed, “The extent of the misconduct found here is far greater than any of the matters involving advertising and marketing presented to us as comparators” as it was not limited to the firm’s website but was “a widely disseminated and popularly known advertising campaign promulgated by means of mass media”, a “key compoent of the firm’s growth strategy” that “succeeded beyond all expectations” owing in part to the “misrepresentations” made during the “extensive and admittedly deceptive marketing campaign.” This factor alone, the panel concluded, “would weigh against a reprimand, and would in itself require serious consideration of whether any penalty that fell short of a substantial period of suspension from practice could be deemed adequate”.
But, in its lawyerlike way, the panel pointed to other factors that supported acceptance of the joint submission, including the lack of a previous disciplinary record, the fact that the misconduct was unlikely to recur, and the absence of evidence “that anyone who sought to retain [Diamond & Diamond] did not ultimately receive competent and diligent representation [from the lawyers to whom Diamond referred the clients]”.
In the end, the test for rejecting a joint submission encompassed “a very stringent standard”; otherwise, rejection could create a “chilling effect on the negotiations that allow for consensual and efficient resolution of disciplinary matters, which our juriprudence recognizes is in the public interest”. The upshot, the panel concluded, was that “A well informed member of the public must also be deemed to be aware of this reality”.
Baloney. Here, in my view, is what any sensible person – which is to say, not individuals “deemed to be aware of this reality” but individuals actually operating in reality (which of course excludes lawyers immersed in the workings of dialectical subterfuge) would garner from the reasons: Diamond deserved more punishment, but didn’t get it because turning down joint submissions is too messy for the administration of justice. In other words, a sensible individual would conclude, after reading the reasons, that the public interest in the efficiency of the administration of justice trumps the public interest in lawyers’ integrity and honesty and that Diamond “got off on a technicality”.
Wouldn’t it have made more sense for the panel to be at least a little less obvious that it was not happy with the joint submission and that, if it thought it could get away with it, would have rejected it? Why write reasons that will seem to any non-lawyer reading them so diametically and philosophically opposed to the result? One can’t help but wonder whether the intent was to ensure that Diamond suffered reputationally, beyond what followed from his reprimand. If so, what’s that got to do with justice, its administration or the system’s transparency?
Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.
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