The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50358
law Times • July 26, 2010 NEWS PAGE 5 Practising specialists reluctant to get involved Continued from page 1 joint experts appointed by the court, rather than by lawyers, because he feels the medi- cal profession struggles in an adversarial system. "Very few physicians are demon- strating opinion based on evidence," he says. "I see too many advocates for a cause, whether it be for their own cause or if it's because they feel they have an obligation to the company they are hired by." Th e new rules stem from recommenda- tions from Justice Coulter Osborne's Civil Justice Reform Project, which heard com- plaints about the increasing professional- ism of expert witnesses at the expense of practising specialists. But Andrew Murray, a partner with Lerners LLP in London, Ont., says the new rules may have actually reinforced that trend. "One of the ideas was to get away from hired guns and pro- fessional experts. Ironically, some of these changes have made it less enticing for the average person who could have an excel- lent expert opinion because it's more cum- bersome administratively." Despite creating templates to help treating doctors through the process of making a compliance report, Murray says there are many who can't be con- vinced. "Th ey say they're busy actually treating people and they don't want to perform this dance." Andrew Neuman of A. Neuman As- sociates Inc., a litigation support service specializing in forensic accounting, wel- comes any attempt to streamline the system but says there have been negative side eff ects. For example, the new rules prevent experts from performing a con- sultancy role for lawyers because it could be considered advocacy. "What it means, particularly in larger cases, is you're going to have to retain a con- sultant in addition to your expert," Neu- man says. "It doesn't quite double the cost but it does signifi cantly increase them." Neuman notes most experts already considered themselves offi cers of the court before they had to sign a declaration con- fi rming it but he sees Form 53 as a use- ful extra layer of accountability for them. "When the court gives you a slap on the wrist, your livelihood will be going on a bit of a sabbatical. It can take years to build back up from something like that. I've seen an expert boutique go from 15 to 20 people down to about four after a critical decision from a judge. Th at will not happen when it's just the professional body doing it." LT Pecoraro billed for time court never sat Continued from page 1 show that disbarment wouldn't be necessary in this case and ar- gued that a well-informed pub- lic would understand a decision to let Pecoraro serve his fi nal clients for a "relatively short period of time at the end of a relatively long period of service to the profession." In the 22 accounts at issue, Pecoraro made claims for sever- al phantom services, including seven judicial pretrials, eight bail hearings, and fi ve Crown DNA applications that never happened. In one case involving G.N., a client subject to a dangerous-of- fender application by the Crown, Pecoraro billed for 40 hours cov- ering fi ve days of preparation and court time for a period dur- ing which the court never actu- ally sat, thereby leaving LAO out of more than $3,000. He also represented another client, K.B., on two diff erent certifi cates. For one of them, Pecoraro indicated the matter, which was related to fi rearms charges, resulted in a fi ve-day contested trial, including a Charter of Rights and Freedoms motion brought by him, when in fact his client pleaded guilty on the fi rst day. Th e two certifi - cates for K.B. cost LAO almost $5,000 in unwarranted fees. Maunder explained that LAO essentially takes lawyers at their word when they describe what happened in court. "Legal aid trusts the lawyer to defi ne those accounts properly," she told the panel. "Th ey will review the ac- counts but primarily to check that the amounts are fi ne given the services as they are defi ned by the lawyer." Pecoraro started accepting legal aid certifi cates shortly after his call to the bar in 1998. LAO began its probe into Pecoraro's billing in late 2005, but he con- tinued to represent clients on certifi cates until the investiga- tion ended in 2007. Th e probe compared court records for each client to check whether he had billed them correctly. After LAO complained to the law society in September 2007, Pecoraro paid back the money through his lawyer, William Trudell, plus $70,000 more to cover the full amount legal aid identifi ed as outstanding in its review of Pecoraro's case. "Although [Pecoraro] is unable to conduct an audit for various reasons, he relies on your estimates and has instruct- ed this reimbursement," Trudell wrote to LAO at the time. According to Maunder, LAO identifi ed problems with 16 more clients represented by Pecoraro in the criminal youth court, but because of the dif- fi culty in getting court records for those cases, they couldn't become part of the law society's misconduct application. Th e panel also found Pecora- ro guilty of failing to maintain his books and records. When LAO asked to see them at the outset of its investigation, Pecoraro said he couldn't provide them because he kept his fi les at the home offi ce he had been shut out of since the break- down of his marriage. "Th e lawyer was not, at the time, keeping detailed records regarding the work done on fi les and had no systematic docket- ing procedure," according to an agreed statement of facts. In an interview with the law society, Pecoraro said his prac- tices also prevented him from rendering accounts for work he had completed in some in- stances. Instead of claiming money owed to him after the legal aid investigation, he said he completed the matters on a pro bono basis. LT When More is Too Much Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only source for Canada's leading law reports, such as the Dominion Law Reports and Canadian Criminal Cases. It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. And Bestcase costs you less! For more information visit canadalawbook.ca too much (LT 1-2x4).indd 1 www.lawtimesnews.com 4/21/10 8:43:56 AM