Jul. 6, 2004. 06:36 AMDisbarment urged over sexual harassment
Lawyer appealing guilty finding
LEGAL AFFAIRS REPORTER
A tough new era of "zero tolerance" toward sexual harassment by lawyers has arrived in Ontario, with a Law Society of Upper Canada committee calling it as grave an offence as stealing a client's money — and one for which lawyers should expect to be disbarred.
In a precedent-setting decision released yesterday, a three-member law society panel concluded Toronto personal-injury litigator Gary Neinstein, 62, should be stripped of his licence, which would make him the first lawyer in Ontario to be disbarred for sexual harassment.
The panel found Neinstein guilty last November of sexually harassing two women in the early 1990s, one a client and the other a secretary at his firm. Neinstein vigorously disputes the findings and has appealed the decision.
The panel ignored glaring contradictions in the evidence and shifted the burden to Neinstein to prove his innocence, said his lawyer, Brian Greenspan, adding his client's disbarment has been stayed pending his appeal.
Until now, lawyers found guilty of sexual harassment have tended to receive three- to six-month suspensions. But in their decision yesterday, panel members said they are not bound by those rulings.
While there appears to be little chance of Neinstein reoffending, his past conduct is likely to affect the reputation of the legal profession as a whole, and the penalty must be severe enough to deter lawyers from similar behaviour, the panel said.
At its essence, Neinstein showed a "disrespect for the trust" placed in him as a lawyer, panel members George Hunter, Stephen Bindman and Joanne St. Lewis added.
Just as when a lawyer breaches a client's trust by stealing money, when it comes to sexual harassment the law society must strongly express disapproval in order to restore trust in the profession as a whole, they said.
"In our considered view, sexual harassment representing a breach of trust must be seen as equivalent to a breach of trust with respect to a client's money. The penalties for these types of transgressions must be equal."
But in an interview, Greenspan said it is "inconceivable" that a lawyer would be disbarred for a theft that wasn't also a crime.
"That's one of the reasons there's presumptive disbarment in cases of financial wrongdoing," he said.
When a lawyer steals money, two issues are at play: trust, which is "fundamental to the legal profession," and the commission of a crime, which in itself could lead to disbarment, Greenspan said. But the allegations against Neinstein do not involve criminal conduct, he added.
The committee found that Neinstein fondled the first woman's breasts and buttocks, later had a consensual sexual relationship with her, then persisted in unwanted contact. It also found that he made "unwelcome advances" and sexually suggestive comments and leered at his secretary.
The only other lawyer in Canada disbarred for sexual harassment was an Alberta lawyer, who was kicked out in 2000 for trying to buy the services of a 16-year-old prostitute, but he was also charged criminally.
The panel relied on a dissenting opinion by one of its own members, Hunter, in another sexual harassment case from 1999, Greenspan said.
"I don't doubt their sincerity or decency, but it's just so wrong-minded what they've done."