We are often asked by clients who have had a complaint made to their regulatory body as to whether they have any recourse to take legal action against the complainant. A recent case from the Discipline Committee of the Law Society of Ontario (“LSO”) confirms the advice that we typically provide, which is that taking legal action against a complainant is not a good idea.
In this case, a lawyer (the “Lawyer”) was disciplined for filing a lawsuit against an individual who had complained to the LSO (the “Complainant”). The Lawyer was acting for a drywall subcontractor in a construction lien matter, and he sent two letters to the Complainant demanding payment on behalf of his client for drywall work done at the Complainant’s property. The Complainant was not represented by counsel.
The Complainant tried to contact the Lawyer by email and by telephone, but the Lawyer did not respond to him, because by that time the Lawyer had been instructed by his client not to pursue the matter further, as the client had sent the debt to a collections agency.
After the Complainant received letters from the debt collection agency, he believed that the letters from the Lawyer might have been a “sham.” He filed a complaint with the LSO explaining his suspicions of fraud, and also complaining that the Lawyer failed to respond to his emails and phone calls.
The LSO was unable to investigate the allegation of fraud, but did investigate the allegation of failing to respond to the Complainant. The LSO decided to caution the lawyer about proper communications and subsequently closed its file.
The Lawyer was upset and offended by the allegation of fraud, and he filed a claim against the Complainant in Small Claims Court seeking damages for time and effort expended in communicating with the LSO, as well as loss of reputation, defamation and injurious falsehood. This action was ultimately dismissed for delay because the lawyer did not set the matter down for trial.
The Complainant informed the LSO of the lawsuit, and the LSO initiated another investigation into the Lawyer’s conduct as a result. The LSO concluded that the Lawyer had engaged in professional misconduct, specifically that the Lawyer had failed to “carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.”
The LSO found that the Lawyer’s conduct could erode public confidence in the legal profession because this conduct could create a “complaint chill,” if members of the public believed making a complaint could put them at risk of retaliatory litigation. The LSO ordered that the Lawyer appear before a panel of the Discipline Committee to be orally reprimanded, and that he pay costs of $3,000.
This case serves as a lesson that bringing a lawsuit against a former complainant is inadvisable, even in cases where the allegations raised by the Complainant are not proven or acted upon by the regulatory body, which was true in this case with respect to the allegations of fraud.
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