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‘Sad day’ for disbarred lawyer

|Written By Michael McKiernan

A Toronto lawyer has been refused permission to resign from the Law Society of Upper Canada despite repaying defrauded funds back to Legal Aid Ontario.

An LSUC panel ordered Massimiliano Pecoraro to pay $10,650 in costs.

“It’s a very sad day,” Massimiliano Pecoraro tells Law Times following what the head of the law society disciplinary panel characterized as one of the most difficult decisions he had come to.

In a brief oral decision, a hearing panel ordered Pecoraro’s licence revoked on Oct. 21 despite the fact that he had made full restitution after he admitted to defrauding LAO of $30,000.

Pecoraro also co-operated with the law society’s investigation, with both sides submitting an agreed statement of facts. In addition, he produced a raft of character references from colleagues, clients, and family and submitted evidence that he had suffered from depression resulting from the collapse of his marriage.

The case hinged on what credit the panel should give a lawyer for any of those factors.

“Apparently, you get none,” Pecoraro’s counsel Bill Trudell tells Law Times.

Trudell says he looks forward to reading a more detailed explanation when the panel delivers its written reasons at a later date. It had struggled with the idea that revocation as opposed to resignation could discourage lawyers from paying back money stolen from clients or legal aid.

“He did the right thing and he was always going to,” Trudell says of his client. “It certainly gives you pause.

I think the panel itself asked: what kind of message is it sending to the profession?”

In delivering his decision, chairman Gerald Swaye said he and fellow panel members Patrick Furlong and Dow Marmur hadn’t seen a case like it in their years at the law society.

“My colleagues and I have sat on many, many cases in our careers at the law society, and I can advise that this probably gave us the most trouble in coming to a decision which we think justice demands,” Swaye said.

In the end, he said the fact that LAO, as a public institution, was the victim of Pecoraro’s actions was a strong influence on the outcome. “Under the circumstances of this case, revocation of licence is the only conclusion we can come to.”

In her submissions, law society counsel Anne-Katherine Dionne argued it was wrong to assume that revocation was reserved for the “worst of the worst.” In a case like Pecoraro’s, she noted, disbarment was the only option unless there were exceptional mitigating circumstances at play.

“It’s important for general deterrence that failure to maintain integrity by overbilling won’t be condoned by the society and will be seriously sanctioned.”

While it was admirable that Pecoraro had paid back the money he took, that shouldn’t be a deciding factor, Dionne added.

“One would hope lawyers pay back because it’s the right thing to do, not because they’re hoping to cut some sort of deal. We don’t want to implement a policy whereby one can buy a lighter penalty.”

Dionne also pointed out Pecoraro could still benefit from his co-operation in the future despite not having the opportunity to resign. “If a lawyer is to reapply, factors such as the level of co-operation and restitution are given significant weight,” she said.

LAO began to probe Pecoraro’s billings in 2005 after he abandoned his post as duty counsel to speak to one of his own matters. A supervisor spotted the infraction, and “things snowballed after that,” said Trudell.

An audit identified $100,000 worth of suspected overbillings, which prompted LAO to complain to the law society in 2007.

Pecoraro later paid LAO $100,000 to cover the full amount it believed was missing. Then in July, he admitted to overbilling 22 specific accounts between 2002 and 2005. (see "Lawyer suspended for ripping off LAO").

Those matters were worth only $30,000 because court records weren’t detailed enough to bring more cases forward.

During the hearing, the panel heard Pecoraro had altered charge details to increase his tariffs and billed for phantom trial dates, motions, and applications to boost his number of allowable hours.

In one case, he billed for 40 hours, including for five days of trial preparation and court time during which the court never actually sat. Bail hearings, DNA applications, and judicial pretrials were among the services he made up in other cases.

“It’s pretty painful to go over it again,” Pecoraro, speaking outside the penalty hearing, tells Law Times.

Pecoraro, whom the LSUC had suspended since his admission of the facts in July, had been winding down his practice for months before that.

A client with a trial date last month was one of the last to be referred to another lawyer. Whichever way the penalty hearing went, he knew it was the end of his career as a lawyer. “I feel pretty terrible,” he says.

Trudell said his client had never downplayed the significance of his misconduct and had displayed considerable remorse over the course of the law society proceedings.

He also produced a doctor’s report that noted Pecoraro had suffered from depressive episodes linked to the breakdown of his marriage, which had begun to crumble at the time he was overbilling legal aid.

In turn, Trudell asked the panel to take Pecoraro’s difficulties into account, although he conceded there was no evidence of a causal link between his client’s depression and his misconduct.

“The important thing is that he is seeking help and continuing to get counselling as opposed to ignoring his problems,” Trudell said.

But Dionne poured scorn on the report and asked the panel to discount it altogether. She questioned the doctor’s credentials and pointed out there were large gaps in Pecoraro’s attendance since his first consultation in 2007.

“The tone of the report is one of wanting to assist the lawyer and not the neutral tone one would expect from an expert report,” she said, adding the doctor’s opinions about Pecoraro’s depressive episodes were too general to be of any use to the panel.

“He doesn’t indicate when it began or how he came to that conclusion. He gives none of the diagnostic tools he used to come to that conclusion.”

Dionne also cast doubt on the value of 19 character reference letters submitted by Pecoraro from clients, his former wife, and colleagues in the profession.

She said the letters from lawyers painted a picture of a caring and collegial advocate but argued important elements were missing from most of them.

For example, few mentioned his medical problems or expressed surprise at his predicament, she noted. “The general nature of the letters render them unhelpful to the panel. I ask the panel to consider whether the references are tainted by friendship.”

That suggestion upset Trudell, who said the writers shouldn’t be expected to give opinions about Pecoraro’s state of mind at the time of his misconduct. “I take great exception to the suggestion that letters from members of the bar are tainted.”

In addition to losing his licence, the panel also ordered Pecoraro to pay $10,650 in costs to the law society.

  • GLASS HOUSES
    His actions were inexcusable but disbarment was too harsh especially since he made restitution. Perhaps legal aid refusing to allow him to acknowledge certificates would have been better.

    Depression can effect your judgement - anyone who hasn't experienced it should not be judgemental about it. I hope he can move forward and find something else to do outside of the realm of law. I wish him well and hopes he can turn this situation into a positive.
  • Mitigation due to mental illness

    Ken Cohen
    I’d have expected to be disbarred if I committed fraud. The lawyer’s actions however will certainly help him with any criminal charges that might be brought against him.

    As far as discouraging other lawyers from making restitution, you make restitution because you’re truly sorry about what you did and want to try to undo some of the damage to others.

    Having said all of this, I think that the fact that mental illness was involved should have mitigated the Law Society’s decision.
  • Correct Decision

    Don Desaulniers
    As a retired lawyer, I feel that this decision was proper. Theft was apparent, and the amounts involved were large.
    If the panel had opted for anything less than licence revocation, I would have been totally shocked and disgusted with the Law Society.
  • LAO ripps off lawyers every day!!

    Guest
    Legal Aid has been ripping off lawyers by first underpaying them and then further slashing the accounts they submit. To add insult to injury, LAO makes lawyers wait for months to get paid on their accounts.

    I am not suggesting that it is okay to rip of Legal Aid, but I am asserting that LAO is not an innocent victim - their hands are not clean!

    It is mitigating for someone to "take back" from the thief - feeling morally justified to settle the score.

    There is an ancient maxim, "Stealing from a thief is not theft but a tort". A tort is not in any way justified yet is remedied by restitution, apology etc.

    LAO has been victimizing lawyers for decades, legally ripping them off! I have no sympathy for such a so called "victim" when a lawyer tries to take justice into his own hands - I am sure Legal Aid ripped him off more than the $30,000 claimed.
  • Specified Period of Suspension

    Jerome H. Stanleigh
    I would have thought a specified period of suspension with a right to reapply would have better served all parties concerned. Any suspension for an indefinite period is harsh even if right and should be exercised under the most unusual and aggravating of circumstances. These are aggravating but unusual circumstances. (Unfortunately)
  • Sad day for lawyers everywhere

    Suave
    This fraud is yet another blow to the reputation of lawyers everywhere. Logical decision by the LSUC.
  • what about previous LSUC decisions?

    Brian
    The article states: "the fact that LAO, as a public institution, was the victim of Pecoraro’s actions was a strong influence on the outcome".

    Why was that fact such a "strong influence"? I've read cases in which lawyers bilked clients out of equal or greater amounts and the LSUC didn't take such a strong stand. And individual clients are usually) more vulnerable than public instititions.
    I've read cases where the offending lawyer trotted out an excuse such as depresion due to a sick family member. And the LSUC was forgiving and quickly allowed the offending lawyer to resume practice.
    Didn't the folks who made this decision look back and see what the LSUC decisions looked like in comparable cases?
  • sad day for disbarred lawyer

    Ron Stein
    If I ripped off funds in this way, I would expect to be disbarred. It should come as no surprise to this man that this was his fate.

    It was the right decision. Being depressed from a marital breakup is quite a stretch as an excuse, don't you think?

    There are way too many lawyers in Ontario due to the complete lack of regulation in this regard imposed by the LSUC and the province's attorney general. And so, to paraphrase Mr. Shakespeare, "the first thing we do is get rid of all the lawyers who steal".
  • peccario

    douglas c. mctavish, q.c.
    Penalty here seems harsh. The Appeal Tribunal will look at it closely. And should. Real question is, can this fellow return at some point to serve his clients and therefore the public interest. Punishment of course. What he did was inexcusable. Essentially, stealing money from Legal Aid. Not good. The extreme penalty was not required in this case. And paid back, which I think is mostly irrelevant.

    The Society submission troubled me. It was, the character letters were tainted by being friends. Where does counsel think character letters come from? Enemies?
  • peccario

    Mike Tweedie
    Doug Mctavish is right. Collegiality demands that we refer to each other as 'friends' before a tribunal. Is this word now to be taken as the equivalent of 'conspirator'? Who else is going to know much about us?
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