Saturday, December 4, 2021

No Bias In Tweets

The web page of the Law Society of Ontario has a weekly summary of proceedings link that provides information about disciplinary matters such as

Mr. Diamond, in a conduct application, sought the Chair’s recusal, alleging that a reasonable apprehension of bias arose from: (i) his having preconceived views of the business of Mr. Diamond’s law firm, arising from the Chair’s previous policy work, which was said to have been demonstrated in a question the Chair asked counsel in the course of penalty submissions; (ii) the Chair previously having tweeted links to a newspaper article and law firm video which were said to have been derisive of Mr. Diamond’s firm; and (iii) the Chair having sent information about his background and caselaw concerning bias to the parties prior to argument of the recusal motion. The panel held that a reasonable and informed person would not conclude that the Chair would not decide the matter fairly, in that: (i) the question concerned a different topic than that addressed in the Chair’s previous policy work, and properly arose on the evidence before the panel which included Mr. Diamond’s admissions of professional misconduct; (ii) tweets of media stories relating to the policy issue that the Chair was working on would not reasonably be perceived as endorsing negative views concerning Mr. Diamond’s firm; and (iii) providing relevant caselaw so that the parties have a chance to assist the panel in its submissions, and relevant background information given the disclosure obligations when bias is alleged, would not be seen as demonstrating bias. As well, the panel found that Mr. Diamond, in waiting to raise the allegation of bias until after the panel had indicated it had concerns about the parties’ joint penalty submission, did not raise the issue at the earliest practicable opportunity and was deemed therefore to have waived the objection. For these reasons, the motion was dismissed.

The panel order is linked here.

The discipline charges were admitted and involve allegations that the attorney

marketed, including on websites and online advertisements, legal services contrary to the Rules of Professional Conduct (“Rules”). The Respondent has marketed in a manner that (i) is likely to mislead, confuse, or deceive and/or (ii) is not demonstrably true, accurate, and verifiable, and/or (iii) is not in the best interests of the public and consistent with a high standard of professionalism, contrary to Rule 4.2-1 of the Rules

The proffered grounds for recusal in the penalty phase

Mr. Diamond relies on three tweets posted by Mr. Mercer in 2017 and quotes from interviews reported by the Star. Two of the tweets related to a video by the Ross Law Firm entitled Wizard of Loz Meets Truth in Legal Advertising. The third tweet related to the Star article.

As to the beloved Oz

In the part of the video in which Mr. Mercer is referred to as “the Wizard of Loz,” his photograph is shown in the clouds beside what appears to be an emerald city as Quinn Ross and Paul Ross sing “we are off to see the wizard.”

(Mike Frisch)

Bar Discipline & Process | Permalink


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