The Ontario Law Society Tribunal recently released a decision in which it reprimanded a lawyer who attempted to sue an individual who filed a professional complaint against him.
The lawyer was called to the Bar of Ontario in 1984 and worked as a sole practitioner in real estate with a small portion of civil litigation, criminal, wills, estates and trusts work since 1998.
While acting for a drywall subcontractor in a construction lien matter, the lawyer sent the complainant a demand letter seeking payment for drywall work done at the complainant’s property. The complainant was not familiar with the name of the sub-contractor and assumed this was an error. He wrote to the lawyer to inquire about the debt.
The lawyer replied by letter advising that his client was a sub-contractor of the company the complainant had hired for construction work. The lawyer requested payment or a statutory declaration from the complainant’s contractor confirming that all subcontractors had been paid.
The complainant tried to contact the lawyer by telephone and left messages at his office asking that he return his calls. The lawyer did not return the calls because his client had instructed the lawyer not to pursue the matter further, having sent the debt to a collection agency instead.
In July and September 2014, the complainant received collection agency letters which led him to believe that the lawyer’s claim for payment might have been a “sham.” On September 30, 2014, he complained to the Law Society of Ontario (“the “LSO”) about a possible fraud as well as the lawyer’s unprofessionalism for failing to respond to his telephone calls.
The LSO was unable to investigate the allegation of fraud. However, it investigated the lawyer’s alleged failure to respond and to supervise staff. In April 2015, after considering the lawyer’s response to the complaint, the LSO cautioned him about proper communications and closed its file.
The lawyer was upset and offended by the assertion that he might have participated in a “sham.” As a result, in October 2015, he commenced an action in Small Claims Court against the complainant seeking damages for time and effort expended in communicating with the LSO, as well as loss of reputation, defamation and injurious falsehood. The complainant retained counsel to defend the action.
Following an unsuccessful settlement conference in January 2016, the lawyer was to set the action down for trial. The lawyer failed to do so and it was eventually dismissed for delay. This, however, meant the complainant lost the opportunity to recover legal costs.
On June 8, 2018, the complainant sent a letter to the Law Society advising of the action, following which the LSO commenced an independent investigation.
In January 2020, the lawyer sent a letter of apology to the complainant which included a cheque to cover some of the costs incurred as a result of the action.
Law Society Tribunal Decision
The tribunal cited Rule 2.1-1 of the Rules of Professional Conduct, which states:
A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.
The tribunal explained that commentary to the above Rule states that:
Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.
The tribunal found that a lawyer who sues someone for complaining to the LSO about their conduct has the possibility of eroding public confidence in the legal profession. It stated that such conduct could create a “complaint chill” if members of the public believed that making a complaint could put them at risk of retaliatory litigation. The tribunal further stated that such behaviour also fails to inspire the confidence, respect and trust of the community and gives an appearance of impropriety. In essence, such conduct does not reflect favourably on the legal profession.
Citing a previous decision, the tribunal explained that:
It is very important that the public know that complaints to the Law Society and Law Society investigations will be disposed of on their merits. Conduct which interferes with complaints and investigations tends to bring discredit on the legal profession as a self-regulating profession.
In our opinion, it is improper to commence defamation proceedings in order to affect consideration of a complaint by the Law Society.
The tribunal found that the principle enunciated in that decision applied in this case, whereby it was important to ensure that an individual can file a complaint with the LSO without fear of reprisal, so that the public interest is served.
As a result, the tribunal concluded that the allegation was established and found professional misconduct contrary to Rule 2.1-1 of the Rules of Professional Conduct.
As a penalty, the tribunal reprimanded the lawyer and ordered that he pay costs to the Law Society in the amount of $3,000.
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