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Representation - Lawyers - Practice Communications. Rogerson v. Law Society of Ontario
In Rogerson v. Law Society of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an LST-AD appeal, here from an LST-HD ruling that held the appellant had committed professional misconduct, and "suspended the appellant from the practice of law for one month, ordered that the appellant comply fully with the terms of the Law Society’s Guidelines for Lawyers Who Are Suspended or Have Given an Undertaking Not to Practice, and ordered that the appellant pay costs to the Law Society in the amount of $5000.00".
Here the court considers Rule 7.2-4 of the LSO Rules of Professional Conduct (RPC) regarding communications made in the course of their practice, and a lawyer's freedom of expression:[40] Rule 7.2-4 of the Rules provides:A lawyer shall not in the course of professional practice send correspondence or otherwise communicate to a client, another legal practitioner, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer. [41] The definition of client found in Rule 1.1-1, together with the commentary directly under the definition, is as follows:"client" means a person who:
(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or
(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client's work;
Commentary
[1] A solicitor and client relationship may be established without formality.
[2] When an individual consults a lawyer in a representative capacity, the client is the corporation, partnership, organization, or other legal entity that the individual is representing.
[3] For greater clarity, a client does not include a near-client, such as an affiliated entity, director, shareholder, employee or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established. [42] The appellant relies heavily on the statement in commentary (3) that a client does not include a family member. He imports this phrase to Rule 7.2-4, and claims that his communication with Client B’s father are therefore not captured by Rule 7.2-4.
[43] The appellant’s position is inconsistent with the plain language of Rule 7.2-4, which includes the phrase “or any other person.” Client B’s father is “any other person.”
[44] The appellant argues that this interpretation violates his rights to free speech and restrains his liberty. He gave as an example that he is entitled to verbally respond as he wishes if a stranger spits on him in the street. This example is not helpful. The scope of Rule7.2-4, by its very wording, is limited to communications by a lawyer “in the course of professional practice”. It does not purport to cover stranger encounters on the street. Client B’s father was communicating with the appellant about the appellant’s account to Client B (a fee dispute). It was communication in the course of the appellant’s law practice.
[45] The appellant did not suggest that the Hearing Panel erred in describing the legal test for incivility, as set out in the Hearing Decision at para. 50.
[46] Rather, the appellant claims that his conduct in relation to Client B and her father did not rise to the level of incivility. This is a question of mixed fact and law, and the appellant must demonstrate a palpable and overriding error. He has not done so.
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