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Drill Baby Drill

By Michael Frisch

The Ontario Law Society Tribunal Hearing Division sustained some but not all allegations of misconduct

Two principles are drilled into the heads of every licensee beginning a litigation practice: first, never communicate with a represented party except through their counsel, and second, there is no property in a witness. This decision addresses the intersection of those two principles, as they are articulated in the Rules of Professional Conduct, with the rights and obligations contained in the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA).

The respondents, Joseph Campisi and Peter Murray, are personal injury lawyers. Their practice focuses on the representation of individuals injured in motor vehicle accidents. They are the subject of separate conduct applications which we heard together over the course of a year beginning in November 2023. The allegations concern the manner in which the respondents and their firm represented eight clients. Six of these clients disputed the insurer’s denials of their accident benefits (ABS) claims before either the Financial Services Commission of Ontario (FSCO) or its successor, the Licence Appeal Tribunal (LAT). The seventh was uninsured and his claim was made to the Motor Vehicle Accident Claims Fund (MVAC). The eighth client was the plaintiff in a Superior Court tort action.

 The Law Society alleges that in the course of representing these individuals the respondents engaged in the following misconduct:

1.     Numerous, repeated and deliberate instances of writing directly to insurance companies during active litigation without copying counsel contrary to Rule 7.2-8 of the Rules of Professional Conduct (RPC).

2.     Sharp practice in sending demand style letters of an improper and/or threatening nature to independent medical examiners (IMEs or assessors) hired by insurance companies contrary to Rule 7.2-2 of the RPC.

3.     Failing to supervise and/or improperly delegating legal work to a non-licensee contrary to Rule 6.1-1 of the RPC and By-Law 7.1.

Decision

we find the Law Society has proven the respondents communicated with adjusters and other employees of insurance companies contrary to Rule 7.2-8 and failed to supervise the work of a non-licensee contrary to Rule 6.1-1 and By-Law 7.1. The Law Society is successful on some, but not all, the allegations of sharp practice.

Analysis

Communications about an issue related to a matter on which counsel has been retained must be directed to counsel absent consent or other legal requirement/authorization. Neither s 64(21) of the Insurance Act nor PIPEDA authorised the respondents’ direct communications with employees of the represented insurers Therefore, we find Mr. Campisi and Mr. Murray breached Rule 7.2-8 as alleged.

Had we not reached this conclusion, we are satisfied the respondents’ refusal to copy counsel on these communications in these circumstances would have amounted to a breach of professional conduct as we conclude that refusing to communicate through, or with a copy to, retained counsel tends to bring discredit upon the legal profession. Clients are entitled to informed legal representation. Conduct which seeks to compromise this entitlement tends to bring discredit upon the legal profession. Law Society of Upper Canada v Dmello, 2013 ONLSAP 5 at paras 79-83
 
IMEs are retained by insurers, normally through a vendor company, to provide a medical or occupational assessment of a claimant either by way of a paper review or an in person examination. They are by definition independent of the insurer and are not the insurer’s client. The client is not the IME’s patient. The relationship is that of examiner/examinee.
 
Although engaged for the purposes of adjusting an ABS claim for benefits and not in contemplation of litigation, their reports are often relied on in ABS litigation. They may be called as a witness to be cross-examined on their expert opinion. In carrying out an assessment the IME creates, collects and discloses personal information which is subject to PIPEDA.
 
In light of the principle that there is no property in a witness, the respondents have always had the ability to question an IME without the consent of opposing counsel. PIPEDA’s obvious advantage is that it permits respondents to engage with IMEs about the content of their reports and assessment process in regulated process containing strict timelines. PIPEDA also provides a means of challenging the completeness and accuracy of the personal information collected, used or disclosed by or to the IME.
 
Conclusion

 For the reasons provided we find the respondents engaged in professional misconduct as follows:

With respect to file 22H-155, Joseph Campisi:

•           Communicated with represented parties without copying counsel contrary to Rule 7.2-8.

•           Engaged in sharp practice in communications with Dr. Wiseman contrary to Rule 7.2-2.

•           Engaged in sharp practice in communications with Dr. Auguste contrary to Rule 7.2-2.

•           Engaged in sharp practice in communications with Dr. Lubbers contrary to Rule 7.2-2.

•           Engaged in sharp practice in communications with Dr. Hines contrary to Rule 7.2-2.

•           Failed to supervise and improperly delegated legal work to a non-licensee contrary to Rule 6.1-1 and By-Law 7.1.

With respect to file 22H-156, Peter Murray:

•           Communicated with represented parties without copying counsel contrary to Rule 7.2-8.

•           Engaged in sharp practice in communications with Dr. Ladowsky Brooks contrary to Rule 7.2-2.

•           Engaged in sharp practice in communications with Dr. Wiseman contrary to Rule 7.2-2.

•           Engaged in sharp practice in his communications with Dr. Auguste contrary to Rule 7.2-2.

•           Engaged in sharp practice in his communications with Dr. Lubbers contrary to Rule 7.2-2.

•           Breached his undertaking to opposing counsel contrary to Rule 7.2-11.

•           Failed to supervise and improperly delegated legal work to a non-licensee contrary to Rule 6.1-1 and By-Law 7.1.

A penalty hearing will be scheduled. (Mike Frisch)

Posted in:
Bar Discipline & Process