Diamond & Diamond under fire
Jeremy Diamond is the face of personal injury law. His ads attract thousands of clients, but their files are sometimes referred out for hefty fees — and he has never even tried a case
He’s the face of personal injury law in Ontario. On television, radio, social media, billboards, buses and atop urinals at the Air Canada Centre, you will find the image and the message of lawyer Jeremy Diamond.
“Nothing is tougher than a diamond,” reads the signature advertisement. “Trust the name you know.”
People hurt in car or other accidents are left with the impression that the 43-yearold Diamond is a top litigator fighting for the little guy.
It turns out that Diamond — described as an “award-winning personal injury lawyer” — has never tried a case himself, according to his own evidence in a recent legal matter.
A Star investigation found Diamond has for many years been attracting thousands of would-be clients and then referring cases out to other lawyers in return for sometimes hefty referral fees. Along the way, the firm’s marketing campaign has raised the ire of the Law Society of Upper Canada, clients, and some lawyers.
“What they’ve done has absolutely changed our industry and it’s changed the way people find lawyers,” says Adam Wagman, president of the Ontario Trial Lawyers Association, which wants a crackdown on misleading advertising and a curbing of referral fees.
Speaking generally, Wagman said “we agree referral fees are a problem and that’s why we’re working with the law society to make some recommendations that will, we hope, create a better environment for the public and the lawyers who serve the public.”
Matt Garraway, injured in a 2014 car accident in Barrie, reached out to Diamond & Diamond but then was contacted by another firm.
“I thought that I was dealing with Diamond & Diamond,” Garraway said.
Previously cautioned for “misleading advertising” in 2013, Diamond added a mix of junior and senior lawyers to his firm to do legal work, but the Star has found cases are still referred out — how many, Diamond won’t say.
The Law Society of Upper Canada said Friday it is investigating about 90 cases of advertising and referral fee complaints involving lawyers from various firms across Ontario. It did not identify the lawyers involved, but said some lawyers face multiple complaints. The society also has a working group examining the broader issues. Diamond’s firm has said the current system, which allows referral fees, “increases the likelihood that everyone that has a viable case will be able to find a qualified legal representative.”
Some clients have also alleged the firm passed their personal details to other firms without permission, something that, if it happened, would be a breach of professional rules.
Brampton resident Jermaine Taylor, 30, was injured in 2014 when the taxi he was riding in crashed. He called Diamond & Diamond because the firm struck him as “reputable.” A lawyer from another firm called the next day. Taylor said he never gave Diamond & Diamond permission to give another firm his personal details.
Lorraine McKenna, a Mississauga woman, fell in a Walmart parking lot in 2014 and fractured her ankle. She had heard the Diamond & Diamond jingle, contacted them, provided personal information about her claim and “somebody else called me 20 minutes after that from a different law firm.” She said she was not asked to consent to the referral or sharing of personal information.
Through his lawyer, Diamond denied this allegation, but could not address the specific cases due to solicitor-client privilege.
Competing lawyers from top Ontario firms have also recently complained Diamond & Diamond has used a marketing technique that “degrades all lawyers” — models in tight Diamond & Diamond tank tops.
Diamond has not responded to interview requests. Julian Porter, a top Canadian libel lawyer retained by Diamond and his firm, said in one of four letters to the Star that the firm complies with all law society rules. Porter noted that in its 2013 caution for misleading advertising, the law society said that “facts have overtaken” the investigation and “for all intents and purposes the conduct which caused the Regulatory concerns has ceased.” Porter said Diamond & Diamond has hired lawyers and currently has “thousands” of clients on retainer, but does refer out “some individuals.” Any referral fee paid does not impact the client’s bill, Porter wrote.
In one of his many advertising videos, Jeremy Diamond described his past.
“Growing up my whole family was in personal injury, so it was natural that I’d end up in personal injury as well,” Diamond said. “I was always interested in the business and helping victims. It was important for me that victims know their rights.”
The business has been good to him. Diamond drives three cars — a $681,300 orange Lamborghini Aventador; a white convertible Maserati Gran Turismo valued at $235,400 and a $124,788 black Range Rover Sport. His firm has been a sponsor of high profile events, including the Toronto Police Chief’s annual gala ($15,000 for the platinum sponsor) and he appears in photos on Facebook and Pinterest with current police Chief Mark Saunders, former chief Bill Blair and Mayor John Tory. According to their website, he and his firm are “award-winning,” with honours given by Consumer Choice, Top Choice and also by the Toronto Sun.
In the late 1990s, Diamond studied at Thomas M. Cooley Law School in Michigan. Before graduation, he had a personal brush with the law. Windsor police charged him in June 1998 with possession of counterfeit money, court documents show. According to a brief news item in the Windsor Star, it was alleged he and another man were trying to pass off $1,600 in “bogus Canadian $50 bills” at Casino Windsor. The charge was withdrawn, there was no criminal conviction, and Diamond was given “adult diversion,” a type of community service. Diamond graduated from the Michigan law school in 2001. The next year, after being called to the Florida state Bar, he and his future wife Dorothy Zafir moved back to Toronto. Diamond was unhappy about the move, as he wanted to practice law in Florida where there “was more money to be made,” according to his evidence in their later divorce proceedings. That same year, he began working at Diamond & Diamond, his uncles’ law firm in Toronto.
During that time, Diamond lived a “playboy lifestyle,” which included extensive travel and “staying at expensive hotels with various mistresses,” according to his ex-wife’s factum in the divorce proceedings — statements that Diamond, in his response, said were wrong. The documents show Diamond drove a Porsche 911 and a BMW SUV while earning $54,000 annually. In the documents, Diamond said his father, a school principal, paid for the vehicle leases.
In 2007, a year before Diamond was called to the Ontario bar, his two uncles, James Diamond (no relation to Superior Court Justice James Diamond) and David Diamond were winding up their practice. They made a deal with Kurt Bergmanis and Alan Preyra, two lawyers from Diamond & Diamond who were striking out on their own while still leasing space from the firm. An exclusive agreement was made to refer Diamond & Diamond files for a 30 per cent cut of the fledgling firm’s fees in each case, according to documents in an ongoing legal dispute now in private arbitration.
Under a separate agreement, David Diamond paid Jeremy Diamond $700 for each file he successfully referred to Bergmanis Preyra, according to Jeremy’s testimony in the arbitration.
(James Diamond, a professor, told the Star he has not been in the firm’s offices in 17 years and has nothing to do with the arbitration. David Diamond did not respond to an interview request made to his lawyer.)
Around this time, Diamond was taking qualifying courses at York University’s Osgoode Hall Law School so he could practice in Canada. Later, in a 2012 affidavit he swore that he “graduated” from Osgoode Hall Law School in 2007. Diamond was called to the Ontario bar in 2008.
There are roughly 34,000 personal injury collisions in Ontario each year and many other slips and falls, dog bites and other mishaps. To make a claim against an insurance company, many turn to a personal injury lawyer. This type of legal practice can be lucrative.
Many Ontario lawyers in other areas of practice refer files at no charge. The law society allows referral fees if the client consents, the fee is reasonable and does not increase the client’s bill. The referring lawyer can be paid in two ways. A payment when the case is settled, typically 15-30 per cent of the ultimate legal fee charged to the client. And in some cases, an “up-front” fee from the receiving lawyer of $2,000 or more, depending on case complexity.
In a cross-examination this past August regarding a billing matter, Jeremy Diamond was asked whether the “intake person” at Diamond & Diamond informs the prospective client that a referral fee will be charged. He responded “no.” Diamond was also asked about his law experience. As to how many discoveries or mediations he had done he replied “a few,” but said he could not recall how many. Regarding trials he had done, Diamond replied “none.”
The Star has asked Diamond to de- tail his referral fees, and reveal intake and referral numbers, but he declined. His lawyer, Porter, said that while the firm does refer out some cases, “Diamond & Diamond currently represents thousands of clients. . . . These are retainers with the firm, in respect of which Diamond & Diamond lawyers represent the clients and prosecute the cases.”
A snapshot of how fees can be apportioned comes from the case regarding the billing matter. There was a settlement from the insurance company of $100,000 and the firm that worked the case, Wolf Kimelman, provided a statement of account to the client: $31,208 to Wolf Kimelman; a “referral fee” of $10,040 to Jeremy Diamond; and $56,000 to the client who sued. The remaining money paid doctors and pharmacies involved in the case.
Another snapshot of how referral fees have worked comes from documents in the arbitration between Diamond & Diamond and another firm. It shows that personal injury firm Wolfe Lawyers paid Diamond $208,000 for 105 cases referred between 2008 and 2011. Wolfe Lawyers told the Star it no longer takes referrals from Diamond and this money was paid when the cases were settled. Wolf Kimelman did not respond to questions from the Star. Around 2012, Diamond & Diamond’s marketing kicked into high gear with flashy U.S.-style commercials. On the firm’s website at the time, Diamond was called both a lawyer practicing “personal injury litigation” and “director of marketing.”
The firm lists itself as “proud sponsors” of the Toronto Maple Leafs, Raptors, Argos, Ottawa Senators, the Marlies and other teams across Ontario. Diamond lawyers appear on television opining on issues as diverse as what to do if you are injured slipping slip on a sidewalk to legal woes affecting former Mayor Rob Ford and pop star Justin Bieber.
“We have over 30 years of experience getting results for our clients,” Jeremy Diamond says in one advertisement. “No matter the injuries, you can call me, Jeremy Diamond. We can visit your house, hospital or place of work and help you with your claim.”
Diamond & Diamond’s competitors have said the marketing campaign misrepresents what the firm does.
In 2012, following a complaint by personal injury lawyer Guy Farrell that marketing was “misleading and confusing,” the society investigated and in 2013 Jeremy Diamond was cautioned.
“Diamond & Diamond are not actually personal injury lawyers at all. Everything they say or imply about acting for you successfully and with ‘toughness’ is untrue because they will not be acting for you,” the law society wrote.
The firm’s disclaimer at the time — which the law society said was “buried in an obscure part of the website” — stated “our firm is mainly a referral source and initial screening agent. . . . Our firm will not represent or suggest that we will act for the client.”
The caution notes that by early 2013, two lawyers (one was Jeremy’s wife, Sandra Zisckind) had joined the firm to do the actual legal work. The law society, based on information provided to them, stated that by 2013 Diamond & Diamond’s structure had “fundamentally changed” and the “conduct which caused the (law society) concerns has ceased.”
Porter, Diamond’s lawyer, told the Star the firm has 16 lawyers on staff, as of this year.
The current disclaimer, at the bottom of the home page with no heading, says some cases will be referred out “due to expertise or other various reasons.”
It states “we will only, with your verbal consent, refer you to another lawyer or paralegal. . . . Referral fees for some may or may not be attached and will have no effect or bearing on your claim.”
Malcolm Mercer, vice-chair of the law society’s professional regulation committee, said “one might expect that where lawyers were advertising with respect to personal injury work that the intention was that they would do the work.” Mercer said a law society working group that he chairs has heard from lawyers concerned that “a certain amount of that advertising was not for the purpose of doing work or getting work . . . but rather for the purpose of referring that work on to others for a fee.”
Presented with this comment, Porter said it does not refer to his clients.
By 2012, the law firm that Diamond & Diamond had an exclusive arrangement with was suspicious it was not getting all the files it was promised. Bergmanis Preyra had two people call Diamond & Diamond posing as prospective clients. Both were referred to another firm. Bergmanis Preyra took Diamond & Diamond to arbitration.
Emails written between late 2009 and early 2011, which are part of the arbitration, appear to reference Jeremy Diamond referring out at least 2,200 clients to outside lawyers.
This is how it worked during this time period, according to an affidavit by a former assistant filed in the arbitration and interviews with people with knowledge of the system.
Clients would contact Diamond & Diamond by phone or by filling out an online form. Diamond would then send this information to an assistant via text message, by his company email or his Yahoo account.
The assistant was told by Diamond that the Diamond & Diamond firm was a “mother agency” that other law firms depend on for clients.
The assistant, neither a lawyer nor a paralegal, said in her affidavit that she would visit clients either at their home or in a coffee shop and ask them to sign a Diamond & Diamond retainer.
The affidavit states her payment was either by cash or cheque.
“Jeremy Diamond made it explicitly clear to me that I was to have no involvement with anyone else in the Diamond & Diamond firm except him directly,” the affidavit states.
He would then assign the client to another lawyer outside of Diamond & Diamond that “he felt was best,” sometimes emailing the client’s confidential information to a new lawyer with whom the client would sign another retainer. Sometimes, personal information about the new case and the client was sent to physiotherapy clinics as well.
Lawyers and staffers at other firms and clinic operators often used Yahoo, Hotmail or Gmail accounts, rather than their professional emails.
Asked about the former assistant’s affidavit, Porter said she is a “disgruntled former employee whose motives are highly questionable, and whose information is inaccurate in material respects.”
The rules of professional conduct state lawyers must keep client information strictly confidential unless the clients consent otherwise.
Asked about this, Porter said “Diamond & Diamond takes client privacy very seriously. When clients are referred to other firms, it is done strictly in accordance with (law society) guidelines.” Porter said Diamond & Diamond seeks “express consent” from potential clients if they are being referred out.
During the 18-month period the Star reviewed, emails appear to indicate Diamond directed 1,722 clients to Grillo Barristers, the firm where Zisckind, his wife, then worked. Zisckind is now at Diamond & Diamond.
In one October 2010 email chain, Diamond writes, “HUGE FILE” in the subject line and instructs a Grillo staffer to hurriedly arrange a hospital visit to a potential client suffering from a broken leg, ankle, shattered arms and ribs from a car accident.
“Get Sal out immediately! No other lawyer but Sal or Sandra!” Diamond tells the Grillo staffer. Sal Grillo would not answer the Star’s questions about why his firm appeared to be taking instructions from Diamond.
Emails included in the arbitration reveal a sometimes cavalier approach to clients. Jeremy Diamond, for example, called a client, who had been bitten by a dog during work as a courier, a “fag.” Discussing the case by email with a firm member, Jeremy Diamond asks, “don’t u like his anal cavity???” The Star found Diamond’s assistant used unprofessional language in emails. Diana Iakossavas refers to one client as “an angry little Persian woman.” On another occasion she refers to potential clients as “retarded,” a “stiff” or a “certified sociopath.”
Iakossavas told the Star she could not comment. Porter said his clients cannot discuss any part of the arbitration because it is a confidential process.
The law society has received nearly 80 submissions related to advertising and referral fees. Recommendations are expected next year.
Among the suggestions: better enforcement of existing rules preventing misleading advertising; whether to limit referral fees and ban “upfront” fees altogether; better transparency to clients when a referral is made; and whether to restrict the type of awards a firm can include in advertising.
Diamond & Diamond recently sent a two-page submission to the law society.
“Our firm spends a significant amount of money on advertising. It is our hope that we will be able to represent every potential client who contacts us with a viable case. In practice, this is often not possible — whether because of capacity constraints or because a potential client’s case is outside our firm’s area of expertise. In such cases, we work hard on the potential client’s behalf to try to find an appropriate lawyer to assist them. Very often, this is a ‘small’ firm that cannot afford broad advertising campaigns, but is happy to pay referral fees,” the submission states.
The Federation of Ontario Law Associations has weighed in, saying that “advertising for the purpose of obtaining work to be referred to others in exchange for a referral fee should be banned.”
The only reason the federation sees for referrals in personal injury matters is if the firm is not competent to deal with a matter, there is a pending retirement, a health issue or if the case is outside of its geographical area.
“Permitting mass advertising for the sole purpose of obtaining a file to refer out is clearly not in the best interest of the public. It is a classic ‘bait-and-switch’ tactic,” the federation states.
Diamond & Diamond is also the subject of two current complaints to the law society.
Earlier this year, seven competing law firms, including Lerners LLP and Siskinds LLP in London, together filed two new complaints about Diamond & Diamond. They complain the firm took advantage of an accident victim still in hospital by showing up uninvited. The second complaint, addressed marketing practices at a motorcycle show. Attached to the complaint is a photo of two buxom women, their tank tops emblazoned with the Diamond & Diamond logo, flanking a teenaged boy. The law firms said this diminishes the profession “in the eyes of the public.”
Diamond & Diamond is currently the subject of two complaints before the Ontario law socieity