Depression Caused Recklessness, Not Dishonesty

The Law Society of Upper Canada Tribunal Hearing Division has sanctioned an attorney for dishonest billing practices

The Licensee engaged in conduct that would normally attract the penalty of revocation.

The Agreed Statement of Facts (“ASF”) entered into by the Licensee on June 27, 2017 indicates that LAO identified 42 instances where the Licensee entered an online account for a contested indictable trial with all four tariff enhancers between March 2005 and November 2009.

 LAO selected 10 of these accounts for further investigation and concluded that the Licensee was overpaid for fees and disbursements billed, as he had knowingly misrepresented the nature and extent of the proceedings and services performed. For example, the Licensee billed for indictable offences when the Crown had elected to proceed summarily, for services not provided, or for contested trials where the client(s) pleaded guilty.

In the 10 accounts investigated, the Licensee knowingly overbilled LAO by the sum of $29,540.61, more or less. In addition, LAO discovered that the Licensee had acted for certain clients privately while or after serving as LAO Duty Counsel, both of which are prohibited either by the provisions of Regulation 106/99 or by the Duty Counsel Manual.

The Licensee admitted these facts in the ASF. We conclude that the Licensee engaged in dishonest conduct, which would normally attract the penalty of licence revocation.

Mitigation was considered

we accept that the Licensee’s depression and alcoholism made him reckless. We accept that his depression and alcoholism are causally connected to the misconduct we found. We find that the Licensee’s depression and alcoholism, combined, form an exceptional circumstance, which explains the Licensee’s misconduct and displaces the presumption in Mucha.

Even where the presumption is displaced, we must move on to consider whether, in all the circumstances, a penalty other than termination of licence is appropriate. We cannot find that it is in this case.

Mucha requires consideration of whether the misconduct is likely to recur. On the evidence in this case, the Licensee’s ongoing depression and alcoholism cause reckless, uncaring behaviour. In our view, the misconduct probably will recur, so long as the Licensee continues to minimize the wrongdoing and his alcoholism and avoids medical and psychiatric treatment for his depression. The evidence in this case also does not meet the requirement in Bishop that the public and the professions can be assured of the Licensee’s future integrity given that the recklessness caused by his alcoholism and depression leads him to acts of financial malfeasance.

To be clear, we do not find that depression causes dishonesty. In our view, the evidence does not establish that the Licensee’s depression caused dishonesty. In this case, combined with alcoholism, it caused recklessness which happened to manifest itself in dishonest overbilling of LAO. Each case must be considered on its own facts, to see whether the tests in the jurisprudence are met and whether the presumption in Mucha is displaced.

Dishonest overbilling of any client is serious misconduct. It is particularly serious in the case of LAO, since every dollar improperly taken deprives a qualified client of a licensee’s assistance and, thereby, denies access to justice. Dishonest overbilling of LAO also causes high administrative and investigative costs, which further burden the publicly-funded system.

The Law Society acknowledges its obligations under the Code, and recognizes that mental conditions, such as depression, are a disability which must be accommodated. In our view, accommodation in this case, such as a long suspension with oversight and rehabilitation, would cause undue hardship to the public interest, to the Law Society’s reputation as a legal regulator, and to the reputation of the professions the Law Society regulates. We have already found that the Licensee might well misconduct himself in the same way again, since we saw no evidence of his full acceptance of the seriousness of his condition and the recommended treatment.

This means that the test in Bishop to depart from termination of licence is not met. The circumstances in this case, in our view, do not rise to a level where it would be obvious to members of the public and the professions that they no longer need be concerned about the Licensee’s honesty and integrity.

[We conclude that, although the Licensee’s evidence and submissions meet the test of exceptional circumstances and displace the presumption of revocation, we are unable to accede to his submission for a lengthy suspension followed by restrictions and supervision. In our view, termination of the Licensee’s licence is still required.

Thus

   If the Licensee does not surrender his licence on or before July 31, 2018, his licence shall be revoked.

(Mike Frisch)