Social Media Use and Apprehension of Bias: Good Guidance Still Lacking

This column is a cautionary tale for adjudicators who use social media such as the platform formerly known as Twitter – although equally applicable to other social media platforms such as LinkedIn. In Law Society of Ontario v. Diamond, 2024 ONLSTA 8 (CanLII), the appeal panel of Ontario’s Law Society Tribunal, found that the current chair of the Tribunal should have recused himself from a conduct hearing based on comments he had made on social media prior to being assigned to the panel, related to the lawyer whose conduct was under scrutiny (Jeremy Diamond of Diamond & Diamond).

Jeremy Diamond was alleged to have improperly marketed legal services both personally and with respect to the law firm Diamond & Diamond, between 2013 and 2017. The hearing panel found that there was no apprehension of bias and denied the recusal motion. Mr. Diamond appealed the hearing panel’s decision on a number of grounds, including the failure of the panel chair to recuse himself. A majority of the panel of the Law Society Tribunal Appeal Division allowed the appeal of the recusal decision but dismissed all the other grounds for appeal. Two members of the appeal division panel dissented on the finding that there was a reasonable apprehension of bias.

In assessing bias in this case, it is important to keep in mind that professional regulatory bodies like the Law Society are set up differently than adjudicative tribunals. The elected members of the Law Society (known as benchers) are directly involved in the development of and implementation of policy as well as in adjudication. It is not unusual for benchers actively involved in policy making to later be called upon to adjudicate disputes where those policies are at issue.

The test for a reasonable apprehension of bias is well established, and the appeal hearing panel summarized it as follows:

The test for a reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would that person think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly?

There is a strong presumption of impartiality of an adjudicator and the onus of demonstrating perceived bias rests on the person alleging the bias. The allegations of alleged bias are to be examined considering the entire proceeding.

The recusal motion was based on actions of the hearing panel chair (Malcom Mercer) both before the hearing and during the hearing. The appeal division panel dismissed the allegations relating to the actions of the chair during the hearing, so we will focus solely on the social media and media comments of the hearing panel chair made before he was assigned to the disciplinary proceeding.

The Advertising & Fee Arrangements Issues Working Group was established in 2016 by the Law Society’s Professional Regulation Committee. Mr. Mercer chaired the working group. Arising out of the work of the group, the Rules of Professional Conduct were amended by the Law Society.

There were three tweets posted by the panel chair and an interview with the Toronto Star at issue in the recusal motion. Two of the tweets related to a video by the Ross Law Firm entitled “Wizard of Loz Meets Truth in Legal Advertising”. The third tweet related to the Star article.

In February 2017, the Toronto Star published an article about referral fees, an issue being addressed by the working group. Mr. Mercer was quoted as saying, “the principal concern about referral fees was about the effect on injured people. … There appears to be a substantial lack of transparency when injured people are looking for a lawyer. It is not clear to them that referral fees are earned in that process.”

After the article was published, Convocation of the Law Society voted to limit rather than prohibit referral fees and amended the Rules to address advertising issues as recommended by the working group. In a subsequent Toronto Star article, Mercer was quoted as saying that the policy changes mean that “injured people in Ontario will be better protected by ensuring they have the information to make the choices that are in their interest.” He said regulation and capping of fees, rather than an outright ban, could allow for “innovative and useful services to emerge and evolve”.

When asked about enforcement, Mercer said the law society was currently investigating about 90 cases of advertising and referral fee complaints involving lawyers from various firms across Ontario. He also said that Convocation deals with policy, not prosecution, and “it’s not for us as policy-makers … to comment on those issues.”

Someone tweeted a link to that article, which also showed a photograph of the Diamond & Diamond advertisement that was included in the article. Mr. Mercer retweeted this tweet and tweeted a link to an article by the Law Society Gazette with the headline “Law Society strengthens advertising rules in the public interest.”

Following Convocation’s adopting the amendments to the referral fee amendments, the Ross law firm posted a video called the “Wizard of Loz”. Mr. Mercer tweeted a link to the video: “Watch Wizard of Loz by The Ross Firm 😊.” The appeal decision contains a transcript of the video. To summarize, the video poked fun at the advertising practices of other law firms, including a pointed reference to a Diamond & Diamond advertising campaign (without mentioning them by name) and referred to Mr. Mercer as “The Wizard of Loz”.

Colin Stevenson, then a Toronto lawyer, now a justice of the Ontario Superior Court, retweeted Mr. Mercer’s tweet, saying “Disciplinary proceedings to follow soon, Malcolm?” Mr. Mercer replied to the retweet, “The tin man is at risk 😊.”

The appeal panel held that Mr. Mercer’s involvement in the working group did not result in an apprehension of bias, and that his comments to the Toronto Star related to this role were also fine. However, the appeal panel majority (with two panel members dissenting), concluded that the tweets related to the Wizard of Loz video, assessed in the context of the other pre-hearing activity, gave rise to a reasonable apprehension of bias.

The majority agreed that there is an important distinction between the policy-making and adjudicative functions of a Bencher of the Law Society, and that Mr. Mercer was aware of this difference. It concluded, however, that when his obvious policy bias was considered alongside his subsequent tweets, a reasonable member of the public would conclude that the chair’s policy bias had crossed over to becoming specific-case bias. It stated that when the two tweets are read together, alongside the contents of the “Wizard of Loz” video and with knowledge of the chair’s prior involvement with the working group and comments in the Toronto Star, they would cause a reasonable, informed person to conclude that, in addition to a policy bias, the chair had developed a specific-case bias against Diamond & Diamond – and, by extension, against Mr. Diamond himself.

The majority based its conclusion on the following considerations:

• The chair of the panel was using Twitter to share information that he believed was worthy of sharing
• He tweeted a video in which he was depicted as “an all-knowing legal regulator” and encouraged others to watch the video
• The video was about legal advertising – the topic at issue in the conduct proceeding
• The chair was actively involved in increasing regulatory scrutiny over legal advertising and referral fees, and commenting to the media about these very issues.
• The video derisively refers to various advertising practices in the legal profession, including advertising above urinals – a specific, albeit implicit, reference to Diamond & Diamond
• The reference to “the tin man” would be perceived by a reasonable, informed person as indicating that the chair was speculating about or contemplating the possibility of disciplinary proceedings in relation to the issues discussed and parties implicitly referred to in the video.
• The chair’s tweets overlapped with the period of the misconduct

An aggravating factor for the majority was that the panel chair was amused by the video and shared it on that basis:

…that does not negate the risk of a perception of bias. Indeed, it may even enhance it. An adjudicator who has engaged in playful banter about the possibility of discipline against a litigant or the firm of which the litigant is the face in a public forum may reasonably be perceived to be biased against that litigant in future legal proceedings.

The majority held that the “cumulative effect” of the conduct would cause a reasonable and informed person (“one who lives in and is familiar with the norms of the digital age”) to develop a perception that the chair was biased against Diamond & Diamond and consequently against Mr. Diamond, who was the “face” of the law firm.

The majority was clear that this approach does not mean that Benchers could not take positions on policy issues and then sit as adjudicators in related cases. They stated that It also does not mean that Benchers cannot post freely on policy and other matters on social media: “They absolutely can”. Where the apprehension of bias can arise is where the Bencher makes specific reference to a lawyer (directly or indirectly) and subsequently is assigned to hear a case involving that lawyer.

The Law Society Tribunal’s Code of Conduct for adjudicators does not contain guidelines on the use of social media.

In a column I wrote back in 2015, I quoted Professor Karen Ellis on the challenges of striking the right balance for judges in regulating social media activity, and I concluded:

The challenge is even greater for adjudicators who may move in and out of an adjudication role or may have dual roles of adjudicator and lawyer. A contextual examination of the limits on social media involvement for adjudicators is an important first step in developing workable guidelines for adjudicators that allow them to remain connected to their community while also ensuring their impartiality.

The Code of Conduct for federal Social Security Tribunal members does contain some guidance on social media use:

9.0 Social media

9.1 Members are free to use social media. But they must use good judgment if they decide to follow people and organizations or post comments where the public can see them. Members must understand that what they do on social media is in the public domain.

9.2 Members can’t use social media to talk about or comment on the Tribunal, unless it is part of their normal duties. …

As demonstrated by this recent case, there is still a need for more detailed guidance for tribunal members on the use of social media.