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.
“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.