Law Times

PAGE 2 NEWS November 1, 2010 • Law Times 'Sad day' for disbarred lawyer Massimiliano Pecoraro repaid LAO but denied chance to resign BY MICHAEL McKIERNAN Law Times Society of Upper Canada de- spite repaying defrauded funds back to Legal Aid Ontario. "It's a very sad day," Mas- A similiano Pecoraro tells Law Times following what the head of the law society disciplinary panel characterized as one of the most diffi cult decisions he had come to. In a brief oral decision, a hearing panel ordered Pecoraro's licence revoked on Oct. 21 de- spite 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 col- leagues, clients, and family and submitted evidence that he had suff ered from depression resulting from the collapse of his marriage. Th e 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 expla- nation when the panel delivers its written reasons at a later date. It had struggled with the idea that revocation as opposed to resig- nation could discourage lawyers from paying back money stolen Toronto lawyer has been refused permission to resign from the Law from clients or legal aid. "He did the right thing and he was always going to," Trudell says of his client. "It cer- tainly gives you pause. I think the panel itself asked: what kind of message is it sending to the profession?" In delivering his de- cision, chairman Gerald Swaye said he and fellow panel members Patrick Furlong and Dow Mar- mur 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 prob- ably gave us the most trouble in coming to a decision which we think justice demands," Swaye said. In the end, he said the fact An LSUC panel ordered Massimiliano Pecoraro to pay $10,650 in costs. condoned by the society and will be seriously sanctioned." While it was admirable that that LAO, as a public institu- tion, was the victim of Pecoraro's actions was a strong infl uence on the outcome. "Under the cir- cumstances of this case, revoca- tion of licence is the only conclu- sion 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 deter- rence that failure to maintain integrity by overbilling won't be Pecoraro had paid back the money he took, that shouldn't be a deciding factor, Dionne added. "One would hope law- yers 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 imple- ment a policy whereby one can buy a lighter penalty." Dionne also pointed out Pecoraro could still benefi t from his co-operation in the future despite not having the opportunity to resign. "If a law- yer is to reapply, factors such as the level of co-operation and restitution are given signifi cant 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 supervi- sor spotted the infraction, and "things snowballed after that," said Trudell. An audit identi- fi ed $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. Th en in July, he admit- ted to overbilling 22 spe- cifi c accounts between 2002 and 2005. Th ose matters were worth only $30,000 because court records weren't detailed enough to bring more cases forward. During the hearing, the pan- el heard Pecoraro had altered charge details to increase his tariff s and billed for phantom trial dates, motions, and appli- cations to boost his number of allowable hours. In one case, he billed for 40 hours, including for fi ve days of trial preparation and court time during which the court never actually sat. Bail hearings, DNA applica- tions, 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 admis- sion 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 signifi - cance 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 Pec- oraro had suff ered from depres- sive episodes linked to the break- down 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 diffi cul- ties into account, although he conceded there was no evidence of a causal link between his cli- ent's depression and his miscon- duct. "Th e important thing is that he is seeking help and con- tinuing to get counselling as op- posed 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 creden- tials and pointed out there were large gaps in Pecoraro's atten- dance since his fi rst consulta- tion in 2007. "Th e tone of the report is Canadian Law of Competitive Bidding and Procurement Understand the rapidly evolving and unique rules for procurement processes This is a guide to the law governing the procurement of construction and other services in Canada. Rarely discussed and analyzed together, this text reviews both court (including the 2010 Supreme Court decision of ) and tribunal decisions, as well as trade agreement rules on fair procurement. It also contains a detailed discussion of many of the current, unresolved issues in competitive bidding. This work provides a step-by-step analysis of the law at each stage of the procurement process to help you avoid the pitfalls. Find out more about: ORDER your copy today Hardbound • Approx. 500 pp. November 2010 • $175 P/C 0994010000 ISBN 978-0-88804-504-1 • • • • • • • • • bid solicitation drafting the invitation fairness and electronic tendering contract clauses bid evaluation post-closing changes and negotiation bid irrevocability tort claims arising from bid processes bid offences A must-have resource for legal and procurement professionals one of wanting to assist the lawyer and not the neutral tone one would expect from an expert report," she said, add- ing 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 refer- ence letters submitted by Pec- oraro from clients, his former wife, and colleagues in the profession. She said the letters from lawyers painted a picture of a caring and collegial ad- vocate 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. "Th e general nature of the let- ters render them unhelpful to the panel. I ask the panel to consider whether the references are tainted by friendship." Th at suggestion upset Trudell, canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1101 www.lawtimesnews.com 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 li- cence, the panel also ordered Pecoraro to pay $10,650 in costs to the law society. LT Tercon Contractors Anne C. McNeely ...and much more!

• Cover
• Child Protection
• Final Chapter?
• Focus On Real Estate Law