Following his disbarment for overbilling the Ministry of the Attorney General, lawyer Munyonzwe Hamalengwa says his actions were unintentional and blames the stress of defending Richard Wills for his mistakes.
“I can guarantee you it was never intentional to overbill,” says Hamalengwa, noting he erroneously double billed for a month’s work and suggesting his secretary billed some disbursements as a student account by mistake.
“I will go to my grave denying” that it was intentional, he adds.
Hamalengwa admits it was “absolutely” up to him to verify the accuracy of the billings but he tells Law Times his mistakes were due to the stress of defending Wills.
“I was extremely busy. The Richard Wills case completely changed my persona,” he says, noting Wills “racially baited” him throughout the case.
Among other things, Wills would call him “a black man in a white court,” Hamalengwa notes.
“The racism added to the pressure, which basically meant instead of concentrating on defending [Wills] on legal issues, I had to fortify myself from his attacks,” he adds.
Hamalengwa’s comments follow what the Law Society Tribunal deemed a “Shakespearean tragedy” that saw one of Wills’ government-funded lawyers
disbarred. Following Wills’ conviction, Hamalengwa was found to have overbilled the government by $61,805. He also charged the ministry for non-existent court attendances and in other instances claimed he had attended court for longer periods than he actually did. In addition, he sent a document to the ministry purporting to be an invoice from a student working under his direction when the student didn’t prepare the bill and the services weren’t rendered as described in the document, the hearing panel found.
“The public and the client must depend on the honesty and integrity of a billing lawyer. The lawyer, who breached one of the commandments of legal life by padding his dockets, intentionally misrepresented some of his disbursements and made intentional misrepresentations in a letter to [Legal Aid Ontario], must have his licence revoked,” wrote Harvey Strosberg on the panel’s behalf.
The panel called Hamalengwa a leader in the black community and said his “fall from grace is a Shakespearean tragedy.”
“During the period from about March 2006 to about September 2007, Mr. Hamalengwa’s moral compass had somehow been sent askew,” wrote Strosberg. In the same ruling, the panel urged Hamalengwa to redeem himself and reapply for a licence in three years.
Hamalengwa “wholeheartedly” denies intentionally overbilling the government in the Wills matter. Instead, he attributes the discrepancies to the pressure of defending Wills, a man who was, according to him, “the most difficult client in the history of Canada.”
The panel, however, rejected this ground as an exceptional circumstance resulting in mitigation on penalty due to the lack of “some causal connection or direct nexus” between Hamalengwa’s actions and the alleged racism. The panel also found Wills had treated everyone terribly.
“The panel concludes that there was no evidence suggesting a connection between or among Mr. Wills’ conduct, Mr. Wills’ racism (which did not exist), the lawyer as a black man and the lawyer’s overbilling,” wrote Strosberg.
“There was no medical or psychiatric or psychological evidence explaining why the lawyer overbilled the [ministry].”
Lawyer Selwyn Pieters says the requirement of a causal relationship demonstrating a direct nexus in this case is wrong in law. Pieters says that in Peel Law Association v. Pieters, a racial profiling case he was involved in, the Ontario Court of Appeal rejected the requirement of a “causal nexus” or link between the adverse treatment and racism.
In Pieters, the court said: “All that is required is that there be a ‘connection’ between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a ‘factor’ in the adverse treatment.”
Hamalengwa had gone to court to support Pieters during the racial profiling proceedings. Although Pieters agrees Hamalengwa’s case is “tragic,” he says the tribunal’s verdict was ultimately fair.
“The penalty is proportionate having regard to how the law society treated . . . similar cases in the past. Had it found that exceptional circumstances existed in this case, it is likely that Dr. Hamalengwa would have been given permission to surrender his licence or be suspended for a very substantial period,” says Pieters.
Hamalengwa has a discipline history. In 2004, Hamalengwa received a reprimand for failing to report to a client and failing to co-operate with a law society investigation by producing his books and records. He received another suspension in 2010 for failing to produce complete books and records.
In the Wills case, Hamalengwa says he was a target for investigation in “a clear-cut case” of racial discrimination. The accounts submitted by the white lawyers on the Wills matter were never investigated, he says, adding some of them billed proportionally more than he did. Legal Aid Ontario was also never investigated for failing to vet his accounts despite the court having told it to do so, Hamalengwa adds.
The ministry had challenged the accounts submitted by another lawyer for Wills, Raj Napal, but in 2013, a Superior Court assessment officer ruled his billings were reasonable. Brendan Crawley, spokesman for the ministry, said the Crown didn’t appeal that decision.
In the meantime, the hearing panel said it was a “tragedy” to Hamalengwa, his family, and the black community that he has now lost his licence.
“The panel hopes that Mr. Hamalengwa will work assiduously to redeem himself, prove his good character and re-apply for admission to the LSUC in three years,” wrote Strosberg.
While at Osgoode Hall Law School, where he earned his doctorate in law, Hamalengwa initiated a group called the Nelson Mandela Law Society and participated in the York Students Movement Against Apartheid. He was also a lecturer at Osgoode Hall and mentored black law students.
Hamalengwa says he’s not sure at this point if he’ll reapply for a licence to practise law. “I don’t know what the future holds,” he says, adding he’ll be focusing on working in his community for the moment. It’s “commendable,” he says, that the panel has encouraged him to reapply for admission to the profession.
For more, see "Court tosses lawyer's racial profiling claim."