[1] Mr. Diamond, the Appellant, appeals the decision of the Law Society Tribunal Appeal Division (the “Appeal Division”) dated August 1, 2018, in which it upheld the decision of the Law Society Tribunal Hearing Division (the “Hearing Division”) dated September 21, 2017. In its decision, the Hearing Division found that Mr. Diamond had failed to co-operate with a Law Society investigation into his firm’s referral practices. The failure to co-operate was due to Mr. Diamond’s delay in providing various financial records to the Law Society. Ultimately, all of the requested records were provided. Pursuant to a joint submission on penalty, the Hearing Division ordered that Mr. Diamond be reprimanded and pay $25,000 in costs to the Law Society.
[2] Under the Law Society’s Rules of Professional Conduct, lawyers are required to act in good faith to reply promptly and completely to the Law Society. This appeal raises the issue of what constitutes acting in “good faith”. According to the Appellant, the Appeal Division construed the concept too narrowly and in doing so unreasonably punished a licensee who at all times expressed a willingness to provide the requested information and only delayed doing so because of confusion and misunderstanding. According to the Respondent, the Appeal Division’s approach to the question of good faith and failure to co-operate was a straightforward application of the existing jurisprudence and an assessment of the Hearing Division’s factual conclusions. The task was within its expertise and the decision was reasonable.
[23] The Hearing Division found Mr. Diamond had committed professional misconduct through his failure to co-operate with the Law Society’s investigation. It found that Mr. Diamond must have known that he had the records containing the information required by Bylaw 9, and that the communications between Mr. Diamond and the Law Society amounted to a “cat and mouse game”. It further found that the documents requested are routine documents that are required to be kept or which should be available from institutions on short notice, and Mr. Diamond should have been able to provide them more promptly.-
[24] The Appeal Division held that these findings were reasonable. It found that it was reasonable to conclude that there had been a lack of good faith given the passage of time, the numerous explanations provided by the Law Society as to what was required, and the fact that licensees are required to have such information readily available. The Appeal Division further found that any confusion or mistaken beliefs on the part of Mr. Diamond did not relieve him from his failure to co-operate, as “[l]icensees must understand their obligations and comply with them; a confused licensee who has not taken the time and effort to be aware of those obligations may be found to have engaged in misconduct.”
Issues Raised
[25] The Appellant raised the following issues on this appeal:
(a) Did the Appeal Division err in law by interpreting the concept of good faith too narrowly?
(b) Did the Appeal Division err in law by conflating the test for failing to co-operate with the positive obligation on a lawyer to keep certain records?
Conclusion