CITATION: Neinstein v. Law Society of Upper Canada, 2015 ONSC 7909
COURT FILE NO.: DC-15-81
DATE: 20151216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D.L. CORBETT and RAY JJ.
B E T W E E N:
GARY NEINSTEIN
Brian H. Greenspan and Naomi Lutes for
the Appellant
Appellant
- and -
LAW SOCIETY OF UPPER CANADA
Susan Heakes and Danielle Smith for
the Respondent
Respondent
Heard at Toronto: November 24, 2015
REASONS FOR DECISION
D.L. Corbett J.:
[1] Gary Neinstein appeals findings of professional misconduct and a six month suspension of his license to practise law imposed on him by a panel of the Hearing Division of the Law Society and confirmed by a panel of the Appeal Division of the Law Society. He raises five grounds of appeal:
(i) The reasons of the Hearing Panel were insufficient, and the Appeal Panel’s decision to the contrary was unreasonable;
(ii) The Hearing Panel unreasonably failed to take proper or any account of the defence evidence of Lina Pugliese, and the Appeal Panel’s decision to the contrary was unreasonable;
(iii) The Hearing Panel unreasonably concluded that conflicts of interest among Mr Neinstein’s clients were not waived sometime around April 2005, and the Appeal Panel’s decision to the contrary was unreasonable;
(iv) The Hearing Panel unreasonably failed to consider the role of succeeding counsel and its impact on Mr Neinstein’s understanding of his own obligations in respect to Mr Neinstein’s breaches of the court orders of Echlin and Moore JJ., and the Appeal Panel’s decision to the contrary was unreasonable; and
(v) The Hearing Panel imposed a global sentence of a six month suspension for the totality of Mr Neinstein’s professional misconduct. On consent, one of the sub-particulars of misconduct was set aside on appeal, thus reducing the totality of Mr Neinstein’s professional misconduct. The Appeal Panel acted unreasonably in failing to reduce the penalty to reflect this reduction in the scope of the misconduct.
General Context
[2] This case arises in the context of a serious personal injury suffered by Mike DeMichino in a car collision in 2003. Mr Neinstein, a senior and experienced personal injury lawyer, was retained by Mike’s spouse, Bessie Banushefski, to pursue claims arising from the collision.[^1]
[3] Mike had a difficult family situation. Prior to the accident he had been estranged for many years from his mother, Rosa DeMichino and his sisters, Carmela and Maria. He had some positive relationship with his brother, Frank. And he had a long-term common law spousal relationship with Bessie. Mike’s relationship with Bessie was apparently a reason for his family estrangement: apparently Mike’s sisters and mother did not approve of Mike’s relationship with Bessie.
[4] Mr Neinstein effectively prosecuted Mike’s tort claims to a favourable settlement. Matters did not go so well in respect to conflicts in the family. And it is in respect to Mr Neinstein’s conduct in that context – the family conflicts – that the findings of professional misconduct arise – findings that he acted in conflict of interest, breached two court orders, knowingly commissioned and relied upon a false affidavit to mislead the Public Guardian and Trustee (“PGT”) and the court, and delayed completion of a settlement to try to preclude his former clients from reporting him to the Law Society.
Summary and Disposition
[5] Mr Neinstein acknowledges imperfect conduct, but argues that his actions were designed to advance the interests of his primary client, Mike, and arose from his sense that (i) Mike’s primary attachment was to his spouse, Bessie, and (ii) Mike’s sisters and mother were pursuing their own self-interest in obtaining control of Mike’s assets rather than protecting Mike’s best interests. Mr Neinstein argues that he has had a long and distinguished career representing unfortunate accident plaintiffs, and that his mis-steps in this case are isolated incidents in an otherwise exceptional career.
[6] The Appeal Panel considered these general arguments at the end of its reasons:
We wish to specifically address the assertion that Mr Neinstein’s good work for his client at a reasonable fee should be a significant mitigating factor. This assertion is troubling. It is no answer to an allegation of conflict of interest to assert that one client’s interests are being zealously advanced when the other client’s interests are being impaired. It is no answer to an allegation to a failure to serve a client that another client is being well-served. Misleading the court and the PGT can never be justified on the basis of zealous client representation. Indeed, any such suggestion fails to reflect the obligations of counsel to the administration of justice. As to the breaches of court orders and the attempt to preclude a complaint to the Law Society, these had nothing to do with advancing Mike’s interests.
Lawyers, as professionals, must honour their obligations to all of their clients at the same time as honouring their obligations to the administration of justice and to the Law Society. It misconceives fundamental obligations to suggest otherwise. (Appeal Panel Decision, paras. 140-141)
I agree. Mr Neinstein’s conduct here was well outside the range of behaviour that may be explained on the basis of excessive client loyalty. Mr Neinstein’s seniority at the bar makes his conduct all the more troubling: a lawyer of Mr Neinstein’s experience should know better than to behave so unprofessionally. And this was no momentary slip or isolated departure from professional standards. It was a pattern of persistent misconduct that went on for years, and displayed a studied indifference to standards of civility and professional obligation.
[7] The reasons of the Appeal Panel are thorough, persuasive, and address all the points raised on this appeal. Certainly its decision is reasonable. Therefore, for the following reasons, despite Mr Greenspan’s and Ms Lutes’ very able written and oral arguments, the appeal is dismissed.
Jurisdiction and Standard of Review
[8] An appeal lies to the Divisional Court from a final order of the Law Society Appeal Division: Law Society Act, R.S.O. 1990, c. L.8, s.49.38.
[9] The parties agree that the standard of review on this appeal is reasonableness. I agree: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Groia v. Law Society of Upper Canada, 2015 ONSC 686 (Div. Ct.) at para 95.
[10] The parties also agree that, before the Appeal Division, the standard of review of the decision of the Hearing Division was reasonableness. Again, I agree: Law Society of Upper Canada v. Crozier (2005), 203 O.A.C. 176 (Div. Ct.); Opara v. Law Society of Upper Canada, 2015 ONSC 3348 (Div. Ct.), para. 19. The Appeal Panel correctly stated this standard of review (Appeal Panel Decision, para. 13), and applied it consistently to its review of the Hearing Panel’s decision.
Issue #1 – Sufficiency of the Hearing Panel’s Reasons
[11] The issue before us is whether the Appeal Panel was reasonable in its conclusion that the reasons of the Hearing Panel are sufficient to permit appellate review.
[12] A reasonable decision is one where there is a “line of analysis” that can reasonably lead the reviewing court from the evidence to the conclusion, and where the reasons supporting the conclusion are “tenable in the sense that they can stand up to a somewhat probing examination” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (“Newfoundland Nurses”), para. 8).
[13] An appeal for insufficient reasons will only be allowed where the reasons are so deficient that they foreclose meaningful appellate review: Newfoundland Nurses, paras. 11 and 13.
[14] Reasons do not need to address each and every argument made by the parties, or all the “statutory provisions, jurisprudence or other details that the reviewing judge would have preferred” so long as the reasons permit the reviewing court “to understand why the tribunal made its decision” and “to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland Nurses, paras. 9 and 16). Reasons are reviewed in the context of the record and neither need be perfect or comprehensive: Newfoundland Nurses, para. 18.
[15] The facts were largely not in dispute. As the Appeal Panel wrote:
There is little dispute as to what actually happened. However, there is a dispute as to Mr Neinstein’s intentions and as to whether his conduct, understood from his perspective, rose to the level of professional misconduct. Counsel for Mr Neinstein submitted that the Hearing Division failed to properly address Mr Neinstein’s intentions, both in their reasons and in the result, and accordingly made reviewable errors in both their findings of professional misconduct and, in any event, in ordering a six-month suspension. (Appeal Panel Decision, para. 11)
[16] The Appeal Panel then reviewed the issues raised by Mr Neinstein on appeal through detailed references to the facts and to the findings of the Hearing Panel. The Appeal Panel concluded that the record and the reasons of the Hearing Panel were sufficient for appellate review, and were reasonable. This comprehensive analysis by the Appeal Panel demonstrates the sufficiency of the reasons below: they were sufficient for review, and, in fact, were reviewed thoroughly by the Appeal Panel.
[17] The Appeal Panel’s conclusion that the Hearing Panel’s reasons were sufficient is reasonable. This ground of appeal fails.
Issue #2 – Evidence of Lina Pugliese
[18] Ms Pugliese gave evidence of long-term estrangement between Mike and Bessie (on the one hand) and Mike’s sisters and mother (on the other).
[19] The appellant argues that this evidence was centrally important to the allegations that Mr Neinstein commissioned and relied upon a false affidavit intended to mislead the PGT and the court. He argues that the Hearing Panel overlooked or failed to place any weight on this important evidence and thereby came to an unreasonable conclusion on these allegations.
[20] Assessing this argument requires an extensive review of the history of the case to the time of the impugned affidavit.
(a) Case History to the Date of the Impugned Affidavit
[21] Mr Neinstein was originally retained on May 8, 2003 by Bessie on her own behalf and on behalf of Mike (who was in a coma at the time) to recover damages arising from Mike’s car collision.
[22] Soon after this retainer was signed, Bessie advised Mr Neinstein that there was friction between her and Mike’s mother and sisters. Bessie instructed Mr Neinstein not to disclose any financial information to Mike’s mother or sisters.
[23] Some family friction concerned Mike’s care at the Toronto Rehabilitation Institute (“TRI”). From July 15, 2003 to March 10, 2004, Mr Neinstein wrote several letters to TRI on behalf of Bessie, instructing TRI not to provide any medical information to Mike’s family.
[24] TRI expressed concerns about Bessie’s involvement in Mike’s care. Bessie had little or no English and found it difficult to communicate effectively with TRI. TRI apparently considered that Bessie interfered in Mike’s rehabilitation, and was not well positioned to make good decisions on his behalf. Mike’s sister Carmela was articulate and well-educated, and TRI thought that Carmela would be better at making good medical decisions on Mike’s behalf.
[25] Mr Neinstein arranged a meeting among Bessie and Mike’s family on October 12, 2004. At that meeting, Bessie, Carmela, Maria, Frank (Mike’s brother), Bessie and AW (Mike’s financial advisor) jointly retained Mr Neinstein in respect to both claims arising from Mike’s car collision, and with respect to “any and all Guardianship Issues, being of Person and Property of Mike”.
[26] In addition to this general retainer, the persons at the meeting, including Bessie, signed an Authorization and Direction appointing Carmela as guardian for Mike. Mr Neinstein undertook to the parties that he would prepare the documents necessary to apply to the court to appoint Carmela as Mike’s guardian. The following day, Mr Neinstein wrote to TRI advising that the family had appointed Carmela as Mike’s guardian, and that “we have begun our Application to the Court for official approval”.
[27] Mr Neinstein knew that there had been past estrangement and hostility between Bessie and Mike’s mother and sisters, but by October 12, 2004, he believed that these conflicts had been put aside in the common goal of advancing Mike’s interests.
[28] Family concord was short-lived. From Bessie’s perspective, she felt that she had an understanding with Carmela that she would be consulted about Mike’s care and that she would have “full access” to her husband. On Bessie’s account, this understanding broke down almost immediately, and she found that her wishes for Mike’s care were ignored and that she was denied access to Mike.
[29] Mr Neinstein took Bessie’s side in this dispute. On April 5, 2005, he wrote on Bessie’s behalf to TRI purporting to terminate Carmela’s authority to act on Mike’s behalf, and appointing herself (Bessie) as the person authorized to act on Mike’s behalf. It was argued before us that Mr Neinstein took this approach because he felt strongly that Bessie was in the right on these issues and Carmela was in the wrong.
[30] At the time that Mr Neinstein did these things, Carmela was undoubtedly his client. And not only did he do these things, clearly against Carmela’s interest, he did not even give her notice that he had done these things.
[31] When she stopped getting medical information from TRI about Mike, Carmela commenced a proceeding before the Consent and Capacity Board (“CCB”) to authorize her to give instructions on behalf of Mike. Carmela commenced the application on her own, without a lawyer.
[32] From that point onwards there was ongoing conflict between Carmela (and her sister and mother) and Bessie over issues of Mike’s treatment and management of his property. Mr Neinstein took Bessie’s part in this dispute. On April 19, 2005, he wrote to the CCB saying that he was counsel for Mike and Bessie and that the information provided to the CCB by Carmela was “a serious misrepresentation and misleading”. At the first meeting at the CCB, Mr Neinstein told Mike, in front of everyone (including Mike’s family and TRI staff): “Mike, the reason that we are here today is because your sisters want to take your money”.
[33] At a pre-hearing conference at the CCB on April 29, 2005, Mike’s physician advised that he had found Mike incapable to consent to treatment. The doctor also expressed concerns about Bessie’s ability to act as a substitute decision-maker. The CCB was also informed that guardianship proceedings remained outstanding before the Ontario Superior Court – proceedings which Mr Neinstein had undertaken to bring but which, in fact, he had never brought.
[34] On May 16, 2005, Mike, Bessie and Mike’s family entered into an interim agreement appointing Carmela as Mike’s substitute decision-maker. This agreement referred to an “expected” application in the Superior Court to appoint a guardian for Mike.
[35] On November 4, 2005, Mr Neinstein prepared and witnessed Mike’s signature on powers of attorney appointing Bessie as his attorney. These powers of attorney were executed without notice to Carmela and were not disclosed to her until January 2006. TRI refused to accept the powers of attorney without a capacity assessment by one of Mike’s doctors.
[36] The tort action was settled on November 21, 2006.
[37] Mike was incapable of managing his property, so it was necessary for the settlement to be approved by the court. It was also necessary that the court appoint a guardian of property prior to distribution of funds to Mike.
[38] Mr Neinstein tried to convince a judge that Bessie and her niece Eleni should act as Mike’s guardians without a guardianship order. It is clear from an email sent by Mr Neinstein’s assistant to Eleni that Mr Neinstein knew that he would have to serve a formal guardianship application on Mike’s mother and siblings, and that he did not want to do so because “this would put Bessie in a very difficult position and would create a war with Mike’s family”. Mr Neinstein hoped to proceed without a formal guardianship application, and thus without the need to give notice to Mike’s family.
[39] On February 28, 2007, the matter came before Wilkins J., who refused to approve the minutes of settlement without notice and without a guardianship application. Wilkins J. ordered that the PGT be involved in the matter.
[40] Counsel for the PGT wrote to Wilkins J. on March 19, 2007, with a copy to Mr Neinstein. PGT counsel advised that (a) the settlement should be approved; (b) the PGT could make no recommendation about legal fees without further information; and (c) the PGT noted the requirement for a guardian of property.
[41] On March 21, 2007, Mr Neinstein brought a second motion to approve the settlement, again without notice. This came before Moore J., who did not accept that a guardian of property was unnecessary. Moore J. directed Mr Neinstein to re-attend with a companion guardianship application.
[42] On April 30, 2007, Mr Neinstein filed an amended application record including a motion for appointment of Bessie and Eleni as guardians of Mike’s property. This amended application was served on the PGT but not on Mike’s mother or siblings. This failure to serve Mike’s family was a direct contravention of s.69(6) of the Substitute Decisions Act, S.O. 1992, c.30.
(b) The Impugned Affidavit
[43] It is in this context that Mr Neinstein prepared and delivered an affidavit of Bessie’s in support of the amended application. This affidavit stated:
The family of my husband, Michele DeMichino are:
a) Bessie… his common-law wife of over 25 years; and
b) His niece, Eleni…;
c) [Mike]… has been estranged for many years and has little or no contact with any other members of his family.
(c) The Findings Below
[44] The Appeal Panel commented as follows:
There was ample basis in the record upon which the hearing panel could conclude that Mr Neinstein was doing his best to avoid involving Carmela and the other family members in the court appointment of Bessie and Eleni. The intent of the affidavit evidence was to avoid the requirement of service of the application materials on the members of Mike’s family. Clearly, the affidavit did not disclose the uncontroverted prior involvement of Mike’s family on the very issue in question before the court. (Appeal Panel Decision, para. 87)
[45] The Appeal Panel then noted the conclusion of the Hearing Panel, a conclusion the Appeal Panel found reasonable:
[Mr Neinstein’s] strong allegiance to Mike and Bessie, and his intention to exclude all others from the decision-making process and participation in the Substitute Decisions Act Guardianship Application, led him to deliberately deceive the court. While his zealousness on behalf of Mike may be admired, it does not, and cannot, excuse his misrepresentations to the court in this matter. (Quoted with approval at Appeal Panel Decision, paras. 88 and 89)
(d) Conclusion: Ms Pugliese’s Evidence Was Not Material
[46] These findings of the Appeal Panel are reasonable and are firmly rooted in the record. Mr Neinstein tried to persuade the court, through Bessie’s affidavit, that Mike’s family had been uninvolved with him for many years. This impression was false in fact, and its falsity was personally known to Mr Neinstein.
[47] During argument, Mr Greenspan, counsel for Mr Neinstein, interpreted the word “estranged” to mean that Mike and Bessie were in conflict with Mike’s family. This understanding of the word “estrangement” was not Mr Neinstein’s understanding or intent here. If the impugned affidavit had said that Bessie was in an active and ongoing state of conflict with Carmela and others in Mike’s family, over the very issue of Mike’s care and best interests, the effect would have been entirely the opposite of what was intended by Bessie’s affidavit. It would have led the court to require that Mike’s family be given notice, and heightened the court’s concerns about hearing from all sides about these issues. It is patently clear from the affidavit, on its face, and in the overall context in which it was written, that this was not what was intended: Bessie deposed that the family was estranged and therefore need not be involved in Mike’s affairs.
[48] It is in this context that the appellant argues that the evidence of Lina Pugliese was critically important and was overlooked by the Hearing Panel.
[49] Ms Pugliese’s evidence is focused on the lack of relationship between Mike and his family in the years prior to the accident.
[50] It may be fair to say that Mike was “estranged” from his mother and sisters prior to the car collision. And it may be that this estrangement was potentially relevant to guardianship issues in 2005 and thereafter. But Ms Pugliese’s evidence was not relevant to whether Mike’s mother and sisters had been actively involved and asserting an interest in Mike’s care and guardianship after the accident.
[51] The Appeal Panel fairly characterized the nature and materiality of Ms Pugliese’s evidence and concluded that the Hearing Panel’s failure to address this evidence was not material to its decision. As noted by the Appeal Panel, Mr Neinstein was personally aware of the involvement of Mike’s family in issues over his care and guardianship since his accident. Ms Pugliese’s evidence has no bearing on those facts, which lie at the heart of the findings against Mr Neinstein on these issues. The Appeal Panel’s conclusions on these issues were reasonable. This ground of appeal fails.
Issue #3 – Waiver of Conflicts of Interest
[52] Mr Neinstein acknowledges that he was in a conflict of interest from late in 2004 until April 2005. He argues that this conflict ceased as a result of waiver by Carmela and her sister and mother. As found by the Hearing Panel at paragraph 54 of its reasons, there was a waiver: a waiver of Mr Neinstein “acting for Mike in the CCB proceedings”. At the time this waiver was given, Bessie had separate counsel in the CCB proceedings, and Mr Neinstein was acting only for Mike. There never was a waiver for Mr Neinstein to act for Bessie (or her niece Eleni) against his former clients.
[53] The Appeal Panel addressed this issue as follows:
In any event, having been retained in October 2005 by the family with respect to guardianship issues on the basis that Carmela would be the guardian, it was an obvious conflict to seek the appointment of Bessie or Bessie and Eleni and to seek to defeat or avoid the appointment of Carmela as guardian…. It is a conflict to act against a current client or a former client in the same or a related matter.
Any waiver of conflict by Carmela in respect of Mr. Neinstein’s representation of Mike before the CCB could not have been a consent to Mr. Neinstein acting for Bessie in seeking to revoke Carmela’s appointment in April 2005 or to acting for Bessie before the CCB in opposing the appointment of Carmela. The same waiver could not provide consent to the subsequent undisclosed retainers to have Bessie appointed as Mike’s attorney for personal care or as guardian of Mike’s person. Indeed, this assertion misapprehends the nature of the consent contemplated under the Rules. Under the Rules, and under fiduciary law which is mirrored in the Rules, consent is premised on proper disclosure. Consent that is not informed is not valid consent. (Appeal Panel Decision, paras. 63-64).
[54] The Hearing Panel concluded that Mr Neinstein acted in conflict of interest when he acted for Bessie and Mike against Carmela and other members of Mike’s family. There was never an express waiver of this conflict, and no constructive waiver that would have allowed Mr Neinstein to do what he did against the interests of Mike’s family. The Appeal Panel reviewed this issue in detail (Appeal Panel Decision, paragraphs 52-75) and found that the Hearing Panel’s conclusion was reasonable. The Appeal Panel’s decision was itself reasonable. This ground of appeal fails.
Issue #4 – The Role of Succeeding Counsel
(a) Order of Echlin J.
[55] Mr Neinstein was ordered by Echlin J. to produce specific documents:
THIS COURT ORDERS that Gary Neinstein shall produce the record filed before Moore J. on the motion for approval, an up-to-date SABs report and a copy of his trust statement. (Order of Echlin J. dated July 31, 2008, para. 4)
[56] Mr Neinstein sent file materials to successor counsel, Bales Bealls LLP. Then, when pressed to comply with the order of Echlin J., he responded that the file was now with successor counsel and so the issue should be taken up with them.
[57] It goes without saying that a lawyer, as an officer of the court, must be scrupulous in respecting court orders. Mr Neinstein’s response was framed that this was no longer his problem.
[58] The Hearing Panel examined the circumstances around this issue closely. It was clearly concerned that Mr Neinstein displayed an inappropriate attitude towards his obligations, and that his “explanation” was not just simply a matter of his misunderstanding the state of things.
[59] The Appeal Panel considered Mr Neinstein’s argument on this point in detail (Appeal Panel Decision, paras. 112 to 121). It concluded that there “was no doubt that what was ordered to be produced was not produced” and that Mr Neinstein knew this to be the case. The Appeal Panel then concluded that Mr Neinstein had a responsibility to do more than he did to ensure compliance with the order. This conclusion was reasonable.
(b) Order of Moore J.
[60] Then there was the matter of the order of Moore J., who directed that Mr Neinstein pay into his own trust account the amount of his claimed fees as a term of the order to distribute settlement proceeds from the tort action. Moore J. directed Mr Neinstein to seek input from the PGT about the quantum of his claimed fees and disbursements.
[61] Mr Neinstein did seek input from the PGT, who suggested a lower number for Mr Neinstein’s fees and disbursements. Mr Neinstein acceded to this suggestion. Then he paid himself from his trust account without obtaining authorization from the court to do so.
[62] The appellant argues that this was consistent with practice in “the old days”. There is no authority before us to support the contention that “in the old days” a lawyer could pay himself from trust in these circumstances, in the face of a court order that he hold the proceeds in trust. But there is more.
[63] Mr Neinstein claims that he did not realize that he had done anything wrong. Then he received correspondence from counsel for the PGT bringing to his attention the need for a court order to release the legal fees to him. He did not correct this suggestion. He did not put the money back. He did not bring a motion for court approval retroactively. He did nothing. It was not until some three years after he had transferred the money that he put it back in his trust account and then took steps to authorize the payment to himself properly.
[64] Whether or not the fees and disbursements charged were fair and reasonable, as Mr Neinstein submitted, it appears that Mr Neinstein either did not understand or did not care that he was acting in breach of a court order.
[65] This was cavalier conduct by a senior member of the bar, conduct which tends to bring the bar and the administration of justice into disrepute. His defence is “no harm; no foul”. It is a defence that fails. Of course, if this misconduct had resulted in permanent wrongful deprivation of funds for his clients, that would be all the worse; but the breach of the order of Moore J. is clear, and is compounded by the studied refusal to rectify the error when its significance must have been patently obvious to Mr Neinstein.
[66] The Appeal Panel reviewed this issue in detail and concluded:
The reasoning of the hearing panel is plain. Experienced litigators know that they are obliged to comply with court orders as written and that the endorsement does not constitute the order. While the hearing panel did not expressly address the point, it is difficult to understand how misreading an endorsement is any excuse for failing to comply with a court order. The hearing panel reasonably observed that Mr Neinstein failed to promptly correct his “mistake” after it was brought to his attention.
The hearing panel reasonably rejected Mr Neinstein’s contention that his failure to comply with the Judgment of Justice Moore for nearly three years was mere inadvertence. There is no shifting of the ultimate burden of proof in saying that it is for an experienced lawyer to effectively explain what is otherwise a clear breach of a court order. (Appeal Panel Decision, paras. 110-111)
[67] These conclusions are reasonable. I agree with the Appeal Panel that the Hearing Panel did not shift the ultimate burden of proof. This ground of appeal fails.
Issue #5 - Penalty
[68] Penalty decisions are discretionary and the Appeal Panel is entitled to a high degree of deference on their assessment of the appropriate penalty: “[i]mposing an appropriate penalty is at the heart of the Appeal Panel’s expertise.” Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939 (Div. Ct.), paras. 29, 130-131.
[69] The Hearing Panel found that Mr Neinstein committed numerous breaches of the Rules of Professional Conduct. One of these breaches, sub-particularized in item 3(3)(b) of the amended notice of application, was reliance upon a misleading affidavit that stated that the PGT had approved Mr Neinstein’s account for matters before the CCB when, in fact, the PGT had not approved that account.
[70] In its decision on the merits, the Hearing Panel listed this aspect of the complaint and set out the evidence and the parties’ positions on the issue. It also set out its conclusion that Mr Neinstein had breached the Rules of Professional Conduct in respect to this sub-particular. It did not, however, include any analysis to support its conclusion.
[71] The Law Society conceded in its factum before the Appeal Panel that this finding of professional misconduct should not stand given the absence of any reasoning to justify it in the Hearing Panel’s decision.
[72] The Appeal Panel upheld all aspects of the Hearing Panel’s decision other than this one sub-particular conceded by the Law Society.
[73] The appellant argued that the Hearing Panel assessed penalty on the basis of the overall conduct, of which this one sub-particular was a part. He argued that this reduction in the scope of the misconduct should, as a matter of logic and fairness, result in some reduction of the overall penalty and, in any event, the penalty was too harsh.
[74] The Appeal Panel considered these arguments fully. It noted that the Hearing Panel had made no mention of this sub-particular in its penalty reasons. It inferred that this sub-particular had likely been overlooked. On one view, then, the Hearing Panel had fixed the penalty without regard to this sub-particular.
[75] The Appeal Panel also considered the issue of penalty in an overall sense. It concluded that the removal of this one sub-particular was not material to penalty and that the penalty imposed – a six month suspension – was “in the range” of a reasonable penalty for the impugned conduct, in the absence of the one sub-particular overturned on consent. This conclusion is certainly reasonable.
[76] Thus on either alternative analysis, the Appeal Panel’s decision on this issue was reasonable. But I would say more. Mr Greenspan argued that six months ought to be the high end of the range for the impugned conduct. I do not see it that way. I would say that the penalty imposed was not just “in the range”, but “well within the range”. It is reasonable, but it could have been higher and also been reasonable. Mr Neinstein’s overall pattern of professional misconduct in this case was a serious departure from the standards of professionalism expected of a lawyer and warranted the penalty imposed.
Conclusion
[77] For these reasons the appeal is dismissed.
[78] If the parties cannot agree upon costs then they shall make brief written submissions, the Law Society by January 15th and Mr Neinstein by January 29th.
D.L. Corbett J.
Swinton J.
Ray J.
Released: December 16, 2015
CITATION: Neinstein v. Law Society of Upper Canada, 2015 ONSC 7909
COURT FILE NO.: DC-15-81
DATE: 20151216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D.L. CORBETT and RAY JJ.
B E T W E E N:
GARY NEINSTEIN
Appellant
- and –
LAW SOCIETY OF UPPER CANADA
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: 20151216
[^1]: I use first names for Mr Neinstein’s clients for simplicity of expression, since many have the same surname, and all should be treated equally in appellation.