After deliberating for several months over a fitting punishment for lawyer Gary Neinstein, a disciplinary panel of the Law Society of Upper Canada decided the 62-year-old man must be stripped of his right to practise law for sexually harassing two women in the mid-1990s.
Mr. Neinstein, a well-known lawyer in the personal injury field, filed an immediate appeal of the three-member panel’s ruling. The law society stayed his disbarment until the appeal can be heard by a five-member panel composed of elected members of the law society’s governing council.
Lawyer Brian Greenspan reacted angrily to the panel’s ruling yesterday, saying its conclusions are inexplicable in view of “overwhelming” evidence that the complainants had fabricated their accounts of being harassed.
Mr. Greenspan said the panel was evidently intent on unilaterally ushering in a policy of zero tolerance toward lawyers who commit sexual harassment, despite the fact that the law society itself remains embroiled in debate over whether to adopt such a policy.
“I am not doubting the sincerity of the panel . . . but they clearly applied a double standard,” Mr. Greenspan said in an interview. “There has been a serious misapplication of the principles of fairness. The way Mr. Neinstein has been treated is outrageous and, in my view, improper. It reflects an agenda of this committee which, hopefully, will be rectified by a review of its decision.”
Only one lawyer in Canada has been disbarred before for sexual harassment: an Alberta man who lost his licence in 2000 for trying to contract sexual services from a 16-year-old client who was a prostitute.
Last year, the law society convicted Mr. Neinstein of groping the breasts and buttocks of, and making unwanted advances to, two complainants, a former client and a legal secretary at his firm.
In its ruling this week, the disciplinary panel also ordered Mr. Neinstein to pay $10,000 to the law society to cover its legal costs. The award was considerably less than the $58,258 the society had originally requested. At the hearing, Mr. Greenspan took strong issue with the large amount and demanded a full cost breakdown.
Mr. Greenspan said yesterday that his client intends to appeal the ruling as far as is necessary to prove his innocence. “He is a strong guy, and has the full support of his wife and family,” Mr. Greenspan said. “This is someone with an otherwise unblemished record. He had never been disciplined before this. He has never been disciplined since.”
The disciplinary panel temporarily withheld the full reasons for the disbarment. However, law society lawyer Diane Oleskiw argued at Mr. Neinstein’s disciplinary hearing that he must be disbarred in order to protect the public and prove that sexual harassment by lawyers is a grave breach of trust.
“This panel should accept the reality of 2003-2004, and impose an appropriate penalty,” Ms. Oleskiw told the panel. She argued that the breach of trust Mr. Neinstein committed was as serious as a breach of trust involving the misappropriation of a client’s funds.
In response, Mr. Greenspan accused the law society of making an example of his client in order to combat a problem that is far from pervasive. “There has never been any evidence advanced in relation to the law society and its members that this is a widespread problem comparable to the medical profession,” he said at the time. “The imposition of this penalty by the law society would be unprecedented.”
Last November, when it found Mr. Neinstein to have committed the offences, the disciplinary panel rejected the evidence of a third complainant, whose account of harassment had been marred by several contradictions. (Mr. Neinstein was also acquitted of a criminal charge of sexual assault in 1999 based on this complainant’s evidence.)
Mr. Neinstein has repeatedly denied the vast bulk of the incidents, including allegations by the former client that he had consensual sex with her at least six times in 1990. At his disciplinary hearing, Mr. Greenspan produced evidence to show that one of the locations where they allegedly had intercourse — his office sofa — did not even exist, and that the thin walls of his office and the proximity of colleagues shed great doubt on the allegations.
“She was as absolutely unequivocal about that as she was about everything else,” Mr. Greenspan said yesterday. “The inconsistencies in this case are too numerous to catalogue. Yet the panel ignored the inconsistencies entirely.”
The law society’s sexual harassment policy was adopted in 1992. Mr. Greenspan argued during the hearing that disbarring Mr. Neinstein would be patently unfair since the incidents took place from 1988 to 1993, before the policy was really in effect.
“To impose disbarment in these circumstances would amount to an injustice,” he said. Mr. Greenspan maintained that disbarring Mr. Neinstein would have the effect of destroying a respected personal-injury litigation firm that employs seven lawyers and several support staff.
However, Ms. Oleskiw insisted that not only did Mr. Neinstein hold a position of power over both complainants, he had enjoyed access to his client’s psychiatric and medical records. “It’s not up to the client or the employee to fight off the harasser,” she told the hearing panel.