Wednesday, August 8, 2018

The Man With The Midas Touch

The Law Society of Upper Canada Tribunal Hearing Division reprimanded an attorney by a joint submission for violations of advertising rules that the attorney had voluntarily corrected. 

General considerations

Since the decision of the Supreme Court of Canada in Jabour v. Law Society of British Columbia,  lawyers and regulated paralegals have been permitted to advertise and market their services, while law societies have been entitled to impose and enforce ethical standards on these promotional activities.

These regulatory standards have required a careful balancing of the competing considerations that underlay the Jabour decision itself, including: the constitutionally protected freedom of commercial expression; the protection of the public against unfair, inaccurate or misleading advertising; assistance for clients in making important choices with respect to legal representation; and maintenance of public confidence in the reputation and standards of the legal and paralegal professions.

 In recent years, owing in part to the rise of social media and other forms of mass communication, the extent and range of such advertising has increased dramatically. At the same time, members of the public, licensees and the Law Society have expressed concern about the advertising and marketing activities of some licensees. The Law Society responded with the creation of a working group to consider whether current regulation of advertising and other issues is sufficient and appropriate. That initiative resulted in the creation, in mid-2016, of an investigative team to deal with advertising and related complaints, as well as recent amendments to professional conduct standards in early 2017.

 This application is one of the first before the Hearing Division in which the Law Society has sought a finding of professional misconduct arising out of a lawyer’s marketing activities. In most instances, complaints about advertising and marketing have been resolved short of formal proceedings, through discussion with the Law Society and voluntary adjustments to the licensee’s advertising.

The complaint over the attorney''s advertising came from his competitors.

Mr. Goldfinger (“the respondent” or “the Lawyer”) was called to the Ontario bar in 2004, and has practised personal injury law on the plaintiff side since then through Goldfinger Law Professional Corporation. The name was changed in 2017 to Goldfinger Injury Lawyers Professional Corporation. I refer to his professional corporations as the Firm.

Mr. Goldfinger was a sole practitioner before hiring his first associate in 2016. He now employs a number of staff, including associate lawyers and law clerks. The respondent lived in London, Ontario from 2010 to 2013, and in Toronto after that...

On his website, the Lawyer claimed to possess “the golden touch.” He posted awards and club memberships, marketed second opinion services, and referred to positive results without disclaimers. He advertised offices in Toronto, London, Kitchener, and Peterborough, and promoted his “team” of professionals.

After the complaint

From December 2016 onward, the Lawyer proactively and voluntarily made a number of changes to his marketing materials. The Lawyer also asked the Law Society to advise him of any remaining or additional concerns regarding his existing advertising, so that he could act swiftly to address them.

The Law Society does not provide such a service.

The issues

The Lawyer has marketed his practice in many different ways, including through his website, personalinjurylawyertoronto.com; blogging; radio ads; newspaper ads; magazine articles; billboard ads; transit vehicles ads; search engine optimization; Facebook; podcast sponsorships; arena rink boards; telephone directories; Twitter; and digital banners.

As of the date of the original complaint letter, May 3, 2016, the respondent advertised on his website that he had four offices, in Toronto, London, Kitchener and Peterborough. Each showed a separate address with a link to a map and driving instructions, as well as a common toll free number. In addition, the Toronto office showed a local phone and fax number.

In London, Peterborough, and Kitchener, the Lawyer also promotes himself through advertisements placed on buses, billboards, and banners. In some of his London ads, the Lawyer has marketed himself as being “London’s Injury Lawyer.” In “Top Lawyers, Canadian Online Lawyer Directory,” Mr. Goldfinger was listed under “Peterborough Personal Injury Lawyers” as “Peterborough Personal Injury Lawyer Brian Goldfinger,” and under “Top London Personal Injury Lawyers,” he was listed as “London Personal Injury Lawyer Brian Goldfinger,” with the same photograph and virtually identical biographical information. The Lawyer and the Firm have represented clients and litigated cases in Toronto, London, Peterborough, Kitchener and the surrounding areas.

He had referred to shared space as offices

In December 2017, the Lawyer voluntarily changed his website to refer to the London, Peterborough, and Kitchener locations as “meeting offices.”

Advocates Forum

As of May 3, 2016, the Lawyer’s website displayed two logos with the words “Million Dollar Advocates Forum” and “Multi-Million Dollar Advocates Forum.”

The “Advocates Forum” group, which makes the badges available for use, is an American company. The badges can be used by lawyers in their marketing (i) if proof, by way of written declaration, is tendered of judgments or settlements in the aggregate amount of $1 million or more; (ii) if current membership, in good standing, in a state bar or law society is demonstrated; and (iii) if an application fee of US$1,700 is paid. If the applicant is unable to meet all of the criteria, the application fee is returned.

The website advertisements did not disclose these criteria to the public. The respondent described the Advocates Forum group as “one of the most prestigious groups for trial lawyers in North America.” This description was taken directly from the Advocates Forum group’s website. He went on, however, to claim that the group was “…limited to lawyers who have won million and multi-million dollar verdicts and settlements.” This went beyond the Advocates Forum criteria.

 In December 2017, the Lawyer voluntarily removed these two badges and all references to them from his website.

And also voluntarily removed

  On his website, as of May 3, 2016, the Lawyer advertised, “Get the lawyer with the Golden Touch.” This wordplay was intended to be a memorable way of getting potential clients to remember the Lawyer’s name.

The division found that his reference to himself as a "specialist" did not violate the rules. 

The respondent advertised that he “specialized” in several subject areas within the personal injury field. There is no Law Society specialist certification in these areas, or indeed in personal injury law generally.

In my view, Mr. Goldfinger’s marketing efforts in this respect would not mislead an objective potential client who was looking for access to legal services. The advertisement was literally accurate, and most members of the public would not associate the word “specialize” with the Law Society’s specialist program at all.

 We therefore do not accept that the agreed facts, in the present context, would reasonably support a finding of professional misconduct, with respect to this allegation.

The Star had a February 2017 article on the "wild west" of Ontario personal injury lawyer ads.

More than two dozen Ontario personal injury law firms have one amazing characteristic in common: they are all the best at helping victims of car or other accidents.

In the “wild west” world of personal injury law advertising, many lawyers will do what it takes to get business.

Wonder if he considered using this song in his advertisements. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/08/the-law-society-of-upper-canada-tribunal-hearing-division-since-the-decision-of-the-supreme-court-of-canada-injabour-v-law.html

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