A Toronto lawyer who admitted last week to bilking Legal Aid Ontario out of $30,000 in over-billed services has had his licence suspended ahead of a hearing to determine whether or not the Law Society of Upper Canada will disbar him.
A disciplinary panel imposed the interlocutory suspension on Massimiliano Pecoraro despite a plea from his counsel to allow him to wrap up cases involving his last remaining criminal clients.
At the same time, he has already paid back $100,000 to LAO to cover both the amounts identified last week and for additional cases it investigated but that the LSUC wasn’t able to include in the misconduct proceedings.
Panel chairman Gerald Swaye granted an adjournment until later this fall to hear arguments on the penalty but agreed with counsel for the law society that there was an “overwhelming” concern about the public perception of any decision to allow a lawyer to continue practising after admitting to misappropriating public funds.
Pecoraro admitted to professional misconduct for knowingly over-billing LAO in 22 accounts related to 14 clients he represented between 2002 and 2005. He altered charge details to increase the tariff he was entitled to and billed for applications, motions, and even trial dates that never occurred to boost his number of allowable hours.
Pecoraro’s counsel Mark Lapowich, noting the lawyer had never been the subject of complaints from clients, wanted him to be able to practise until the upcoming penalty hearing. Pecoraro still has a number of criminal defence clients, including one with a trial scheduled for mid-September.
“There are matters that get scheduled months in advance while Mr. Pecoraro has attempted to start to wind down his practice,” Lapowich said.
But law society counsel Leslie Maunder disagreed, pointing to the cases of Harry Kopyto and Angelina Marie Codina, which also involved legal aid and in which both lawyers were disbarred.
The seriousness of the offence necessitated immediate suspension, she said. “In a best-case scenario, he’s looking at a very lengthy suspension. There’s no reason why that shouldn’t start today.
What will it do to the public perception of our ability to regulate lawyers if they know a finding can be made of over-billing an entity like LAO and yet the lawyer can continue to practise after the finding has been made?”
But Lapowich said he hoped to show that disbarment wouldn’t be necessary in this case and argued that a well-informed public would understand a decision to let Pecoraro serve his final clients for a “relatively short period of time at the end of a relatively long period of service to the profession.”
In the 22 accounts at issue, Pecoraro made claims for several phantom services, including seven judicial pretrials, eight bail hearings, and five Crown DNA applications that never happened.
In one case involving G.N., a client subject to a dangerous-offender application by the Crown, Pecoraro billed for 40 hours covering five days of preparation and court time for a period during which the court never actually sat, thereby leaving LAO out of more than $3,000.
He also represented another client, K.B., on two different certificates. For one of them, Pecoraro indicated the matter, which was related to firearms charges, resulted in a five-day contested trial, including a Charter of Rights and Freedoms motion brought by him, when in fact his client pleaded guilty on the first day. The two certificates for K.B. cost LAO almost $5,000 in unwarranted fees.
Maunder explained that LAO essentially takes lawyers at their word when they describe what happened in court. “Legal aid trusts the lawyer to define those accounts properly,” she told the panel. “They will review the accounts but primarily to check that the amounts are fine given the services as they are defined by the lawyer.”
Pecoraro started accepting legal aid certificates shortly after his call to the bar in 1998. LAO began its probe into Pecoraro’s billing in late 2005, but he continued to represent clients on certificates until the investigation ended in 2007. The probe compared court records for each client to check whether he had billed them correctly.
After LAO complained to the law society in September 2007, Pecoraro paid back the money through his lawyer, William Trudell, plus $70,000 more to cover the full amount legal aid identified as outstanding in its review of Pecoraro’s case.
“Although [Pecoraro] is
unable to conduct an audit for various reasons, he relies on your estimates and has instructed this reimbursement,” Trudell wrote to LAO at the time.
According to Maunder, LAO identified problems with 16 more clients represented by Pecoraro in the criminal youth court, but because of the difficulty in getting court records for those cases, they couldn’t become part of the law society’s misconduct application.
The panel also found Pecoraro guilty of failing to maintain his books and records. When LAO asked to see them at the outset of its investigation,
Pecoraro said he couldn’t provide
them because he kept his files at the home office he had been shut out of since the breakdown of his marriage.
“The lawyer was not, at the time, keeping detailed records regarding the work done on files and had no systematic docketing procedure,” according to an agreed statement of facts.
In an interview with the law society, Pecoraro said his practices also prevented him from rendering accounts for work he had completed in some instances. Instead of claiming money owed to him after the legal aid investigation, he said he completed the matters on a pro bono basis.