A Law Society of Upper Canada tribunal hearing panel has decided not to disbar a Grand Bend, Ont., lawyer found to have overbilled Legal Aid Ontario after concluding his actions weren’t intentional.
“It underlines that there must be some sort of dishonesty, theft or fraud before revocation can be ordered,” says Lerners LLP’s Brian Radnoff, who represented lawyer William Kennedy.
“Carelessness alone should never amount to disbarment; that’s not fair in most situations,” he adds.
“If you’re consistently careless and get into lots of trouble, that’s a different situation. But for people who have no prior disciplinary record, carelessness should not result in disbarment.”
Kennedy had told the panel his “sloppy record keeping” and his chaotic life due to his addiction to alcohol were to blame for the $25,000 in overbilling to LAO.
In a decision dated Nov. 26, the hearing panel suspended Kennedy indefinitely until he gets help for his addiction and proves he’s fit to practise. It also found the case hadn’t met the threshold of misconduct needed for disbarment.
“Intention is a major consideration in determining penalty,” according to the panel’s decision.
“The allegations in this application do not include intention, fraud or knowledge,” it continued.
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 previous submissions in the case. 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, LAO paid him for a matter he worked on as a per diem Crown attorney as opposed to defence counsel.
Part of the hearing panel’s conclusions on penalty last month stemmed from Kennedy’s assertions that he also failed to submit some bills to LAO. “It was Mr. Kennedy’s evidence that he under billed LAO that persuaded the panel to accept his evidence that the overbilling was not intentional,” according to the decision.
“In addition to testifying that he kept no dockets and relied on memory and experience to submit accounts, Mr. Kennedy presented court dockets showing attendances for clients that were never billed to LAO.”
At his penalty hearing in September, Kennedy disputed assertions by law society counsel that he 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 said his alcohol abuse often clouded his estimates and memory of the work he did.
In addition to seeking treatment for his addiction, which Kennedy admitted had cost him both personal and business relationships, the hearing panel also ordered him to pay LAO $12,000 that he still owes the organization. LAO was able to recover the remainder of the funds by clawing back money it owed to Kennedy.
Radnoff notes his client is “pleased with the panel’s decision and looks forward to getting healthy and fit to practise again.”
Radnoff, who represented Kennedy on a pro bono basis, calls the panel’s findings “reasonable and fair.”
His client’s ability to repay LAO the amount owing is dependent on his ability to make a living again, Radnoff notes.
During his penalty hearing in September, law society discipline counsel Elaine Strosberg argued Kennedy’s 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.
At the time of the penalty hearing, Strosberg acknowledged the panel had discretion to suspend Kennedy but pointed out he 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.”
In the past, the law society has often disbarred lawyers who bilked LAO. In 2010, it took away lawyer Massimiliano Pecoraro’s licence to practise law after finding the lawyer had defrauded LAO out of $30,000.
Pecoraro admitted to professional misconduct for knowingly overbilling. In 1989, lawyer Harry Kopyto lost his licence for overbilling Ontario’s legal aid plan by $150,000.
There was also Angelina Codina, who lost her licence to practise law after she charged LAO $20,000 for services she never rendered. Codina also received a six-month sentence for the fraud in a separate criminal proceeding related to the same matter.
Criminal lawyer John Navarrete of Neuberger & Partners LLP says he agrees with the panel’s decision that Kennedy’s case wasn’t like previous instances of lawyers who knowingly cheated LAO.
“The strongest evidence in terms of why there was no intent is No. 1, the fact that sometimes he under billed, or two, the fact that he had no docketing practice,” says Navarrete.
Still, the case “should send shivers up everybody’s spine” about the perils of inadequate docketing, says Navarrete.
“It’s one of those cases where all lawyers should look at it . . . and say, ‘I’ve got to be proactive on these things.’”
For more, see "Lawyer admits records a 'disaster,' apologizes for bilking LAO" and "Lawyer who bilked LAO hoping to keep licence."