The Wizard Of Loz And Policy Bias

The Ontarion Law Society Appeal Division found that a hearing chair’s views on lawyer advertising merited recusal and that a new panel should consider penalty

 For the reasons below, the appeal is dismissed except for the appeal of the Recusal Decision. The appeal of the Recusal Decision is allowed (Christopher Bredt and Doug Wellman dissenting). The majority finds that the chair’s pre-hearing social medial activity gave rise to a reasonable apprehension of bias and his participation in the proceedings therefore denied the Lawyer of procedural fairness. Accordingly, the case is remitted to the Hearing Division, before a differently constituted hearing panel, for penalty submissions. The Law Society’s cross-appeal is dismissed.

Charges alleged

The respondent has marketed, including on websites and online advertisements, legal services contrary to the Rules of Professional Conduct (Rules). The Lawyer 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 hearing rejected Resondent’s request to stay proceedings and claims of selective prosecution.

As to recusal, respondent’s bias claims involved hearing chair actions before, during and after the hearing

 The Lawyer relied on three tweets posted by the chair in 2017 and quotes from interviews reported by the Toronto 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.

The wonderful Wizard

 A transcription of the “Wizard of Loz” video follows:

Legend: Actor 1: Quinn Ross; Actor 2: Paul Ross; Voice-Over: Rob Bundy

[music playing – “The Wizard of Loz meets Truth in Legal Advertising”]

Actor 1: What are you doing?

Actor 2: Huh, working on our marketing strategy.

Actor 1: Ohh, are you sure you’re the right person for that particular job?

Actor 2: It strikes me that our advertising is out of touch. We’ve got to come up with a plan that engages the market. We’ve got to tell our clients what they want to hear.

Actor 1: Ohh yeah, and what’s that?

Actor 2: Well, that we’re the best, we’re cheap, and we never lose.

Actor 1: Have you ever heard of the Law Society? You know, our regulator. They’ve got this little thing called Rule 4. It deals with advertising. Seriously, have ya’ read it?

Actor 2: Has anybody?

Actor 1: How about Malcolm Mercer. He just wrote a report to the Law Society on advertising. Have you ever heard of Malcolm Mercer?

Actor 2: Sure. The Wizard of Loz.

[new background – Actor 1 and Actor 2 singing together]

Actors 1 and 2: We’re off to see the wizard, the wonderful Wizard of Loz … because, because, because, because, because … of all the wonderful things he does.

[new background – Actors 1 and 2 in office again]

Actor 1: Okay, what do you got?

Actor 2: Well, there’s this firm in Texas who will sell us web addresses certain to drive clients to our website.

Actor 1: Really? What URLs are they suggesting?

Actor 2: Well, let me show ya’.

[Actor 2 typing – “IfGodNeededaLawyer.ca”]

Actor 1: Yeah, that’s great. And hey, while we’re at it why don’t we see if they’ve got www.disbarred.com?

Actor 2: Okay, how about this. For four grand, we can “win an award” and then we can use the award on all of our advertising.

Actor 1: Good. I can see it. On everything we send out, top-right hand corner a little golden turd. You can’t buy an award. That’s not an award, that’s a sham. Hey, and while we’re at it, how about we buy some advertising over some high-volume urinals? It’s simply in bad taste.

Actor 2: So you don’t think it passes the smell test. Jeez, I didn’t think you would be so negative. Alright, let’s forget about the advertising. Here’s another thing, and no offence, but we need to replace you as the firm’s spokesperson with an actor. Someone with presence, with real gravitas.

Actor 1: You mean someone who looks and speaks like a real lawyer.

Actor 2: Bingo. The people want timely answers that sound like the truth.

The people want answers.

Actor 1: The people want answers? Given your shoddy marketing plan, I want answers.

Actor 2: YOU WANT ANSWERS?

Actor 1: I THINK I’M ENTITLED TO THEM.

Actor 2: YOU WANT ANSWERS?

Actor 1: I WANT THE TRUTH.

Actor 2: YOU CAN’T HANDLE THE TRUTH

[new background – the Ross firm professional corporation, Goderich, Stratford, Kincardine, www.rossfirm.com]

Voice-Over: Here’s the truth about the Ross firm. It’s an innovative, high-tech law firm that gives great advice for great value. Now, if only we could say we’re the best.

[Credits]

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.

On May 10, 2017, Colin Stevenson retweeted Mr. Mercer’s tweet, stating: “Disciplinary proceedings to follow soon, Malcolm?” Mr. Mercer retweeted Mr. Stevenson’s tweet, stating: “The tin man is at risk  .”

During the hearing

•         The chair’s preconceived, and incorrect, views of the firm. The Lawyer submitted that the chair’s statements on the record reflected a fundamental misunderstanding of the business of the Diamond & Diamond firm and a profound antipathy towards the Lawyer in particular. Among other things, he expressed the view that, in the relevant time period, the firm was “essentially in the referral business and not in the business of practising personal injury law”, that the firm had achieved “significant success reliant on what has been found to be professional misconduct”, that it had engaged in “mass advertising for personal injury services that aren’t being provided”, and that “a lot of people” had been affected by this mass advertising. It was submitted that these assertions were not supported by the evidence before the hearing panel.

•         The chair’s role in, and promotion of, the “Wizard of Loz” video. The Lawyer submitted that the chair’s role in, and promotion of, a video that derided and mocked the Lawyer and his firm would undoubtedly raise concern for any informed person viewing the matter realistically and practically.

•         The chair’s public crusade against referral fees. The Lawyer submitted that the chair served as the chair of the Law Society’s Advertising & Fee Arrangements Issues Working Group, which authored a report in 2017 on advertising practices. The working group’s mandate included looking into referral fees and determining whether any regulatory responses were required. In that role, the chair became the very public face of an apparent crusade against referral fees, at a time when the Diamond & Diamond firm had become the equally public face of the existing referral fee regime.

•         Finally, the Lawyer submitted that the hearing panel failed to consider, as it was required to, “the cumulative effect of all of the relevant factors”

Bias findings below

When we consider the allegations and the circumstances as a whole, we conclude that a reasonably informed person would conclude that in the 2017 time period the chair was knowledgeable about and interested in issues relating to advertising, referral fee and contingency fee practices. As the chair of the working group, the chair clearly developed a “policy bias” in favour of the various policy changes which were recommended to and approved by Convocation. However, a reasonably informed person would also conclude that the chair was alive to the distinction between policy making and adjudication and was careful not to comment on any potential cases that might be ultimately pursued by the Law Society. There is nothing in this period that suggests that the chair would not bring an open mind to the particular facts and circumstances of the actual case being adjudicated.

The notice of application in this proceeding was not issued until August 2018, well after the various changes made by Convocation. There are no further allegations regarding the Chair’s lack of impartiality prior to the hearing that took place on September 20, 2021. The events during the hearing and prior to the recusal motion do not change our conclusion that the chair would bring an open mind to the particular facts and circumstances of the actual case being adjudicated.

We find that, a reasonable informed person, viewing the matter realistically and practically – and having thought the matter through – would not conclude that the chair would likely not decide the issues fairly. We would have dismissed this ground of appeal.

Here

 Gerald Chan, Annamaria Enenajor, and Joelle Malette (majority):– We conclude that the hearing panel erred when it held that the chair’s social media activity did not create a reasonable apprehension of bias. In our view, there was a denial of procedural fairness and the appeal should be allowed on this ground…

Where we part ways with Mr. Bredt and Mr. Wellman is in relation to the issue of the chair’s pre-hearing activities. In advancing his motion for the chair’s recusal, the Lawyer relied on quotes from interviews of the chair reported by the Toronto Star and three tweets posted by the chair in 2017. Two of the tweets related to a video by the Ross Law Firm entitled “Wizard of Loz Meets the Truth in Legal Advertising”. The third tweet related to the Toronto Star article. The Lawyer also took issue with the chair’s role in the Law Society’s Advertising & Fee Arrangements Issues Working Group. For the reasons set out below, we conclude that the tweets related to the Wizard of Loz video, assessed in the context of the other pre-hearing activity, gave rise to a reasonable apprehension of bias.

Conclusion

  The appeal is dismissed except for the appeal of the Recusal Motion. The appeal of the Recusal Motion is allowed (Christopher Bredt and Doug Wellman dissenting), and the matter is remitted to the Hearing Division, before a differently-constituted hearing panel, for penalty submissions.

(Mike Frisch)