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The Man With The Midas Touch

By Michael Frisch

The Law Society of Ontario

The circumstances giving rise to this motion are highly unusual, to say the least.

The appellant Law Society brought a conduct application against the Lawyer relating to his marketing practices.  The hearing proceeded on the basis of an agreed statement of facts, a joint submission on professional misconduct, and a joint submission on penalty (a reprimand).  During the hearing, following submissions, the hearing panel accepted the joint submission on both professional misconduct and penalty.  The parties then signed a waiver of appeal rights, following which, the hearing panel administered the reprimand.  The hearing panel later released written reasons (Law Society of Ontario v. Goldfinger, 2018 ONLSTH 103 (CanLII)) in which it refused to accept certain of the particulars of misconduct that had formed the basis of the joint submission.

The Law Society now alleges that it signed the waiver under a misapprehension of the effect of the hearing panel’s acceptance of the joint submission.  It takes the position that its waiver was uninformed and as a result unenforceable.  Its appeal seeks to overturn the decision of the hearing panel with respect to the particulars the panel refused to accept.  It does not seek to set aside the finding of professional misconduct or the penalty.

The Lawyer for his part has already been found by the hearing panel to have committed professional misconduct and been reprimanded.  He takes the position that the appeal should be quashed on the basis that the Law Society is bound by its waiver.

During the argument of this motion, we also raised with the parties whether the Law Society’s appeal was from the order of the hearing panel, or the reasons, and if the latter should be quashed on that basis.  We asked for and received written submissions from the parties on this issue.

For the reasons that follow, we conclude that the waiver signed by the Law Society was uninformed and therefore unenforceable.  We also find that the appeal is from the final decision or order of the hearing panel under s. 49.32(1) of the Law Society Act and as a result is properly constituted.  As a result, we dismiss the motion to quash.  We make no order with respect to the costs of this motion.