Law Society of Ontario v. D’Alimonte, 2018 ONLSTH 86 (CanLII)

Advertising that is misleading or deceptive in nature will generally be met with a short suspension.  

Date Heard: May 31, 2018 | Full Decision [PDF]

This was a hearing before the Law Society Tribunal regarding the misleading, confusing, and deceptive advertising employed by the Applicant.

John D’Alimonte is a personal injury litigator who was called to the bar in 2013. He has practiced as a sole practitioner since 2014. In 2015, Mr. D’Alimonte formed a partnership with Howard Merricks, a lawyer who practices in Florida and is not licenced to practice in Ontario. Mr. D’Alimonte and Mr. Merricks formed a partnership called Merricks Law Firm.

AskGary has websites based in both Canada and the United States. AskGary functions in the United States as a referral service for lawyers in Florida, Kentucky, New Mexico, and Minnesota. The Canadian version of AskGary functions as a “helpline” for individuals who have been in auto collisions, as opposed to a referral service.

Mr. Merricks has a “handshake agreement” with AskGary which allows him to exclusively market legal services in Canada through AskGary advertisements. When AskGary call centres received phone calls from Ontarians involved in auto accidents, they would be directed to Mr. D’Alimonte via Mr. Merricks’ agreement with AskGary. AskGary would then be compensated by Mr. Merricks based on the number of phone calls directed to Mr. D’Alimonte. Mr. D’Alimonte planned to then reimburse Mr. Merricks once his practice became profitable.

AskGary also ran television advertisements in Ontario which Mr. Merricks paid for. Mr. D’Alimonte approved the content of these ads before they were broadcast.

The television commercials claimed that AskGary had received over 200,000 phone calls over the past few years. The ads further alleged that callers were able to obtain medical help as well as legal help. While this may have been true of AskGary in the US, this was not the case for callers from Ontario.

Mr. D’Alimonte also had a website found at the address of onguardforthee.com. While the website had changed from time to time, the site had posted a number of improper advertisements, including:

  • Suggesting Mr. D’Alimonte had more than one office in Ontario, which was untrue
  • Suggesting that Mr. D’Alimonte’s practice contained a number of lawyers at the firm, despite Mr. D’Alimonte being the only practising lawyer
  • Using photos of actors or Florida-based lawyers to suggest they were lawyers at Mr. D’Alimonte’s firm
  • Alleging the lawyers of Mr. D’Alimonte’s firm had over 100 years of combined experience when in fact Mr. D’Alimonte had only 4 years of experience
  • Claiming the firm had a specialization in personal injury despite Mr. D’Alimonte never having received a specialist certificate from the Law Society
  • Advertising second opinion services
  • Advertising past successes of Mr. Merricks without noting that the past results were not indicative of future results

At the hearing, Mr. D’Alimonte admitted to 3 particulars which constituted professional misconduct. They were:

  1. That he had promised to pay referral fees to AskGary, which was in contravention of Rule 3.6-7(b) forbidding the payment of referral fees to non-lawyers and paralegals
  2. That the TV ads for AskGary which were approved by him were misleading and likely to confuse, contrary to Rule 4.2-1
  3. That the website onguardforthee.com marketed second opinion services, suggested Mr. D’Alimonte was a specialist, and advertised in a manner that was misleading and confusing, all in contravention of Rule 4.2-1.2, Rule 4.3-1, and 4.2-1, respectively

The parties had jointly submitted that the appropriate penalty was a reprimand. The Tribunal was mindful of the fact that joint submissions on penalties should not be lightly interfered with. However, it was noted that the position of the Law Society was evolving and that misleading advertising should ordinarily attract a more significant punishment, such as a short suspension.

As the jointly submitted penalty could not be considered so unreasonable as to fall outside the acceptable range of penalty outcomes, the Tribunal accepted the submission for a reprimand. The Tribunal emphasized that moving forward the Law Society would be treating the issue of misleading advertising with much more severity. The Tribunal noted:

Going forward, lawyers and paralegals are forewarned that the Law Society is treating misconduct in this area seriously and that penalties for professional misconduct, when found, will be significant…Compromising client decision-making about who to retain is serious misconduct and should be treated as such.

Mr. D’Alimonte was reprimanded at the hearing and was ordered to pay costs of $5,000.00.

 

Read the full decision [PDF]
Nick Smith
Written by

Nick first joined Oatley Vigmond as a law student, and later an articling student, prior to joining the team as an associate lawyer. He has a Law Degree from the University of Kent, a Master of Laws from Osgoode Hall Law School, as well as an undergraduate degree in Political Studies from Queen’s University.

Nick is interested in ensuring that clients are provided with the support and advice they require during the litigation process. People who have suffered through the trauma of a serious personal injury are already in a position of vulnerability, and Nick is committed to helping them through this difficult process. Specifically, Nick seeks to help right the balance in an insurance system that is becoming increasingly antagonistic toward injured individuals.