A Grand Bend, Ont., lawyer has admitted to billing Legal Aid Ontario for contested trials that didn’t happen, court dates that didn’t take place, and criminal charges he never defended.
A Law Society of Upper Canada hearing panel found William Kennedy guilty of professional misconduct on June 16 after he also admitted to accepting LAO certificates for clients he had previously represented as duty counsel, something generally prohibited by legal aid rules.
LAO filed a complaint to the law society after it conducted two investigations into 20 randomly selected certificates handled by Kennedy. All 20 files contained problems that included “double or triple billing” as well as other inaccuracies, according to law society counsel Elaine Strosberg.
At a hearing last week, Strosberg said Kennedy had overbilled LAO by $25,000, an amount based on the 20 investigated files out of 107 certificates he had handled. She noted LAO doesn’t have the resources to look into all of the 107 cases.
Kennedy billed LAO for |contested trials “where no trial occurred,” seven indictment proceedings where the matter had proceeded summarily, and two bail hearings he didn’t conduct. In one case, legal aid paid him for a matter he worked on as a per diem Crown attorney as opposed to defence counsel, said Strosberg.
Kennedy, who attended the hearing via teleconference, admitted to the allegations contained in an agreed statement of facts.
LAO has recovered about $13,000 of its losses by clawing back funds owed to Kennedy.
“While the lawyer has not paid the $11,876.52 balance that LAO has deemed owing, LAO hasn’t taken any further steps to recover this money from the lawyer because it concluded the lawyer did not have the funds to repay this amount,” the agreed statement of facts noted.
The document also noted Kennedy had misunderstood the scope of an exemption that allows lawyers in Huron County to accept legal aid certificates for clients they also represented as duty counsel.
The exemption for Huron County exists because of the lack of lawyers in that region, but according to the agreed statement of facts, Kennedy used that provision to represent clients outside of the region as well.
The agreed statement of facts also noted Kennedy was unclear about LAO’s tariffs for legal aid work.
“Since it began its online billing protocol, LAO has provided a lawyer and payment assistance service to assist lawyers with questions about how to bill for services rendered, but the lawyer has never availed himself of that service,” said Strosberg.
LAO removed Kennedy from its roster of lawyers after LAO president’s designate George Biggar in 2009 found “strong factual evidence of misinformation and of deception in his accounts as submitted to LAO” following an investigation by investigator Gerald Rifkin.
The law society hearing panel, chaired by Barbara Murchie, made a finding of professional misconduct on the same date as the hearing. It has set a penalty hearing for Aug. 19 and 21.
The law society will be seeking revocation of Kennedy’s licence. But Kennedy’s counsel, Brian Radnoff, who’s representing the lawyer on a pro bono basis, said he would call medical and character evidence to support a lesser penalty.
Kennedy has no previous discipline record. Radnoff tells Law Times there’s no criminal proceeding against Kennedy in the matter.
Since 2005, LAO’s online billing protocol has allowed lawyers to bill for services without providing detailed accounts and dockets except in exceptional circumstances. When they submit their bills online, lawyers acknowledge they’ve provided accurate accounts.
LAO began its investigation into Kennedy’s files after a supervisory duty counsel in Sarnia, Ont., complained that the lawyer had been accepting certificates from his duty counsel clients. Between January 2005 and September 2006, Kennedy represented 68 clients whom he had also assisted as duty counsel, according to LAO’s investigation.
In the past, the law society has disbarred lawyers who bilked LAO. In 2010, it took away lawyer Massimiliano Pecoraro’s licence to practise law after finding he had bilked LAO out of $30,000.
Pecoraro admitted to professional misconduct for knowingly overbilling LAO on 22 accounts related to 14 clients he represented between 2002 and 2005. He
altered charge details to increase the tariff and billed for applications, motions, and even trial dates that never
occurred to boost the number of allowable hours.
In that case, Pecoraro had paid back all of the funds in question to LAO. That case hinged on the credit he should receive for co-operating with a law society investigation and paying back the money to LAO. The panel struggled with the question of whether disbarring lawyers who had paid back the money would discourage others from doing the same.
But in the end, the panel decided disbarment was the only decision it could arrive at.
“Under the circumstances of this case, revocation of licence is the only conclusion we can come to,” panel chairman Gerald Swaye said at the time.
In 1989, the law society disbarred former lawyer Harry Kopyto for overbilling Ontario’s legal aid plan by $150,000. The regulator also took away Angelina Codina’s licence after it found she had charged LAO $20,000 for services never rendered. Codina also received a six-month sentence in a separate criminal proceeding related to the matter.
For more, see "Sad day for disbarred lawyer" and "Angelina Codina facing legal troubles again."