A lawyer found guilty of charging Legal Aid Ontario for work he didn’t do told a Law Society of Upper Canada hearing panel his “sloppy record keeping” and his chaotic life due to his addiction to alcohol are to blame for his actions.
At his penalty hearing on Sept. 18, William Kennedy of Grand Bend, Ont., disputed assertions by law society counsel that he deliberately treated LAO like “a cash machine.”
He told the panel he didn’t keep a record of the time he spent on LAO files and that he used “his best estimates” to charge the organization. He also blamed his alcohol abuse for often clouding his estimates and memory of the work.
A hearing panel found Kennedy guilty in June of billing LAO for non-existent trials, court dates, and criminal charges. He has admitted to those allegations in an agreed statement of facts.
“My practices of keeping records were irresponsible. They were a disaster,” he said during his testimony earlier this month. Asked what care he took to ensure the accuracy of his LAO dockets, he responded: “Very little.”
Kennedy appeared visibly uncomfortable during cross-examination by law society discipline counsel Elaine Strosberg, who argued his improper billing practices were intentional.
“I’m going to suggest that your improper billing was deliberate. You billed the tariff maximums or close to them because legal aid would pay them,” she said.
“You knew what the maximum was and you just filled in the blanks,” she added.
But Kennedy insisted what he did was “improper, reckless, sloppy, unprofessional” but “it was not intentional.”
He exhaled heavily through his responses and once asked for a break during Strosberg’s questions.
Strosberg noted Kennedy had obtained an adjournment in October to allow him to go to rehabilitation but suggested he still hadn’t taken that step. “In October last year, he said he was out the door on his way to rehab and he wasn’t,” she said. “He comes before [the hearing panel] today with the same problems and he has not dealt with them
For his part, Kennedy said he didn’t have the money he needed to go to rehabilitation and later decided he’d seek counselling instead. But this summer had been a “wake-up call,” he said, noting he has realized he wouldn’t resolve his significant alcohol problems through counselling alone. Three out of his four children don’t talk to him, said Kennedy, adding he has had a number of health issues throughout the year.
“I didn’t really fully admit I have a significant problem until recently,” he said.
If allowed to keep his licence, Kennedy said he intends to pay LAO the nearly $12,000 he owes the organization. He also apologized to the panel, the public, and the law society for his actions. “I am very sorry for this proceeding, that my conduct led to this proceeding. It will never happen again,” he said.
He added: “These monies shouldn’t go to reckless professionals like myself. I am a disgrace in the jurisdictions in which I practise.”
Kennedy had overbilled LAO by $25,000, an amount based on the 20 investigated files out of 107 certificates he had handled. Of that amount, LAO has recovered about $13,000 of its losses by clawing back funds owed to Kennedy. The organization says it doesn’t have the resources to look into all of the 107 cases he worked on.
When LAO discovered issues with Kennedy’s billings, it asked him for detailed accounts. But he told the hearing panel the detailed accounts were also full of information fetched from his memory.
“Instead of saying to legal aid, ‘I don’t have [the detailed accounts],’ you recreated them from thin air,” said Strosberg.
She added: “He made it all up. It was all fiction.”
Lawyer Brian Radnoff, who’s representing Kennedy on a pro bono basis, pointed out instances in which his client didn’t charge LAO for work he did do. When it comes to charging LAO for contested trials that didn’t happen, one of the improper actions Kennedy has admitted to, the lawyer said he was under the impression that he could bill the organization for his preparation for the proceedings even though they didn’t go ahead.
The hearing panel, chaired by Barbara Murchie, asked if it could — in the hypothetical scenario that it found Kennedy didn’t deliberately overbill LAO — suspend him indefinitely until he returns from rehabilitation and proves he’s a changed man.
Strosberg said the panel had discretion to make that finding but pointed out Kennedy hadn’t presented a medical report to prove his addiction had caused his misconduct.
“We’re not a time machine. We don’t know if he had alcoholism in 2005,” she said. “How can you know? He has every reason to give you a self-serving version of events.”
The panel has reserved its decision.
For more, see "Lawyer who bilked LAO hoping to keep licence."