June 7th, 2012
Imagine working diligently to be admitted into law school, and then, once admitted, pouring over thousands of cases, cramming them into your brain, being tested on them, and once this is all said and done, studying for two more exams, articling for ten months and finally becoming a lawyer— only to be disbarred. The thought is absolutely nauseating. This, however, was the case of Lee Edward Fingold (“Fingold”). Fingold was a practicing lawyer disbarred in January 1996. No longer being a member of the Ontario bar did not stop him from practicing law, or from holding himself out as being able to practice law in Ontario. In The Law Society of Upper Canada v Fingold, 2012 ONSC 2850, the court determined what should be done with such behaviour.
Fingold and the LSUC have had a history of, how shall we say this, animosity towards one another. Such issues have included discipline and disbarment proceedings, Fingold’s criminal convictions, and proceedings in the Ontario Court of Justice and Ontario Court of Appeal. With some success, the LSUC even brought forward proceedings prohibiting Fingold from contravening the Law Society Act. Justice Boswell made an Order on September 2nd, 2010, which forbade Fingold from contravening the provisions of s. 26.1 of the Law Society Act, R.S.O. 1990, c. L. 8 “By holding himself out as, or representing himself to be, a person who may practice law, or who may provide legal services in Ontario, or by practicing law or providing legal services in Ontario.” While the LSUC was successful in getting the judge to issue Order, it did not mean that Fingold was going to follow it.
Fingold was golfing with his friend Mr. Beau Scott, who was being sued by the Toronto-Dominion Bank. As a friend and without remuneration, Scott asked Fingold for legal advice. On April 20, 2011, Mr. Leazua, a lawyer licensee representing the Toronto Dominion Bank in the civil action involving Mr. Scott, received a fax from Fingold on the letterhead of “The Blessed Paralegal” (note: since May 1, 2007, paralegals have been regulated by the LSUC in accordance with the Law Society Act). The fax stated that Fingold was a paralegal assisting Mr. Scott. The fax also included an offer to settle the action. Mr. Lezau did a search in the LSUC’s directory of lawyers and paralegals in an effort to find Fingold. Fingold was not in the directory. Suspicious, Lezau informed the LSUC who then conducted an investigation.
This was the last straw for the LSUC in their ongoing saga with Fingold. They took this deviance as an opportunity to not only make an example of him, but to possibly scare him into following their rules. They brought an order forward alleging that Fingold represented and held himself out to be a paralegal and provided legal services by negotiating in Mr. Scott’s legal interests. Fingold’s behaviour not only contravened s. 26.1 of the Law Society Act but also went in direct opposition of Justice Boswell’s order.
At the Ontario Superior Court
Although both of Fingold’s submissions in defending himself to the court failed, Justice DiTomaso reduced the amount of time that Fingold would be incarcerated from six months, as the LSUC requested, to fourteen days. On its face, it was a simple decision to make. Fingold knew he could not practice law, yet he stated he was a paralegal. As for the charges of acting in contempt of Boswell J’s order, the three-stage test for contempt was set out by the Ontario Court of Appeal in Prescott-Russell Services for Children and Adults v G.(N.) (2006), 82 OR (3d) 686. The court first requires that the breached order states clearly and unequivocally what should and should not be done. The court then requires that the party who disobeys the Order must do so deliberately and willfully. Lastly, the court requires that the evidence must show contempt beyond a reasonable doubt
Fingold admitted he should not have used the word ‘paralegal’ as he did. He, however, tried to argue that the incident was insufficient to prove that he had disobeyed Justice Boswell’s order beyond a reasonable doubt. The court in this matter held enough was enough. The order was clear and unequivocal; at no point did Fingold try to say that he did not understand the order. By holding himself out, or by representing himself as a person qualified to provide legal services in Ontario, he violated the order. Justice DiTomaso wrote:
[t]he letter is no accident but is designed to impress upon the recipient that Mr. Fingold is clothed with the legal authority to represent two clients being sued by the Bank and in so doing is authorized to present an offer to settle. I have no doubt that Mr. Fingold’s conduct was wilful and deliberate when he sent this letter. He knew that he was bound by the Order of Boswell J (at para 35).
Teaching Fingold a Lesson?
The interesting facet of this case lies in the judge’s choice of remedy. Fingold’s unrepentant and unapologetic attitude garnered him jail time. What’s more, it was believed that if a fine was sanctioned, Fingold would not pay it. The judge therefore deemed it necessary to send him to jail in an effort to “impress upon Mr. Fingold the seriousness of his contempt.”
Does this sentiment not reign a little with parents sending children to their dreaded rooms, so they can think about what they have done? For some children, this tactic works, and the children sob and promise (not necessarily holding true to the promise, but nevertheless sincerely pledge) to never commit the same offence again. This tactic is not as successful when the child has numerous distractions, toys and video games at his or her disposal. It is even less effective when the child is unrepentant, much like Fingold. In fact, sending the child to his or her bedroom can at times become a reward for the behaviour. As someone who has never gone to prison or dreams of such affliction, I cannot speak to the conditions of incarceration. However, Fingold has. In an interview with the National Post, he explained that when in prison, he “gave legal advice to pretty much everyone there. When they hear there’s a lawyer in custody, they all want to know what they should do”
With 14 days of jail time, it does not seem that he learned his lesson. Alas, he was a child with an X-Box happy to play to his heart’s content.