Dissenting view in Harry's 1989 case with Law Society

THE LAW SOCIETY OF UPPER CANADA IN THE MATTER OF The Law Society Act:

AND IN THE MATTER OF Harry Kopyto of  The City of Toronto, Barrister and Solicitor:

REASON FOR DECISION OF CONVOCATION – DISSENT

November 14, 1989

IN THE MATTER OF The Law Society Act;

AND IN THE MATTER OF Harry Kopyto of the City of

Toronto, Barrister and Solicitor;

I have carefully read the draft reasons of the majority of Convocation in this matter. In concluding that I must dissent from those reasons I am aware that there is no precedent. It is worth noting that Convocation has just recently adopted a new policy regarding the issuance of written reasons for discipline decisions and therefore there has been no history of any written reasons, majority or otherwise. In any event, I am so fundamentally in disagreement with the majority in Convocation, as well as the Discipline Committee that I am compelled to state my reasons for disagreement. In coming to my conclusions I have reviewed the original Complaint against the Solicitor, the Amended Complaint, the transcripts of the proceedings before the Committee and Convocation, the Solicitor’s Notice of Objection and the case law provided by counsel as well as both Decisions.

To understand this case fully I believe it important to know its history. The Solicitor was originally the subject of a complaint sworn on the10th of September, 1987 which particularized professional misconduct in six paragraphs which appear as 2(a)i-vi in the Complaint. The first five complaints centered around plagiarizing legal research and subsequent behavior surrounding those complaints. The final complaint was that the Solicitor was guilty of Professional Misconduct by “ (vi) deliberately preparing and submitting erroneous accounts to Legal Aid” (Emphasis here and elsewhere is mine). This complaint was withdrawn and a new complaint was sworn on January 31, 1989. This new complaint was substantially similar to the one proceeded on except it contained paragraphs (b) and (c) which were later withdrawn. Most importantly, the wording in the first line of the particulars alleges that he deliberately submitted inflated accounts.

In the amended Complaint the word “deliberately” does not appear and the word “inflated” has been replaced by “inaccurate”. The Complaint asserts the Solicitor prepared accounts “the amounts and details he knew to be inaccurate but which he nevertheless submitted to the Ontario Legal Aid Plan for payment.” Particulars are then set out in 21 examples. The Complaint relies upon and is only made out by the facts set out in the Agreed Statement of Facts. How and why the inaccurate accounts came to be rendered are answered in Paragraph 4 of that document as follows:

The Solicitor took sole responsibility for the preparation of his Legal Aid accounts, by dictating tapes of the account entries; the accounts were then typed by his secretary. In the years 1984 to 1986 the Solicitor was extremely busy taking on numerous clients. The Solicitor failed to keep accurate and complete dockets of the services he performed, especially with respect to telephone calls. One client who kept meticulous notes of relations with the Solicitor recorded services, telephone calls and meetings which the Solicitor failed to include on his accounts to the Ontario Legal Aid Plan.

The Solicitor adopted as a billing practise, guessing at the services performed, estimating the time taken to perform those services and the times when those services were rendered, thereby creating inaccurate accounts. In stressing the words that were amended I note that clearly the Solicitor and Counsel for the Society negotiated to conduct that was not deliberate.

The Agreed Facts state that the Solicitor suspected that his billing practises could result in overbilling of Legal Aid but did not attempt to inform himself as to whether or not this was happening. This statement was clearly regarded as the pivotal one by both the Committee and Convocation who concluded that the Solicitor knowingly misrepresented the facts to Legal Aid intending that they act on those facts to their detriment and his profit, therefore committing a fraud, I disagree. It goes without saying that one who knowingly guesses and estimates must realize that his results will not be precise. That lack of precision can result in an error upwards in his estimates or downwards. It will almost certainly never be right on. By virtue of the fact that he had to guess and estimate from incomplete and inaccurate dockets the Solicitor would have to suspect that he could be overestimating at times, just as he would have to suspect that he could be underestimating at times. It is inherent in the process of guessing. If he did not have such suspicions he would not have believed himself to be estimating. He would have thought that he was being absolutely accurate. I find that although estimating, the solicitor clearly believed in the essential truth of his accounts and therefore the facts do not fit into the definition of fraud in Derry v. Peek 14 App. Cas.337.

It is also clear from the Agreed Facts that there was a sorry lack of hard evidence from which the Solicitor could reconstruct his accounts. The Solicitor’s evidence was that he estimated honestly and as best as he could from his memory and whatever else there was in the files that could assist him. Although it was quite clearly undesirable and unprofessional of the Solicitor to allow himself to have arrived at that state of affairs it is difficult to imagine what he was supposed to do in most cases to “inform himself” if he was overestimating or not. Clients generally would not have even the incomplete records the Solicitor had and would not be aware of much of the work done on the file by the Solicitor. Other lawyers who did work on a file may or may not have had an independent recollection of the time spent on the file outside of their dockets. While it would obviously be preferable to have checked with collateral sources on all billing matters, in the absence of evidence of a dishonest intent on the part of the Solicitor, I cannot find that this omission leads to the conclusion that the Solicitor was willfully blind to the facts and intended to overbill.

I have concluded that both Convocation and the Committee misperceived the use that could be made of the Solicitor’s evidence given on the Penalty portion of the Hearings. All of the facts in support of the finding of Professional Conduct were before first the Committee, then Convocation, before the Solicitor called any evidence. As reviewed earlier the explanations for the inaccurate accounts were spelled out in the Agreed Facts: guessing and estimating from inaccurate and incomplete dockets. Even if the Solicitor’s evidence is rejected completely those explanations in the Agreed Facts remain and cannot be rejected without striking the admission of Professional Misconduct as well. It was not open to the Committee and Convocation to use Sentencing evidence to fundamentally change the facts admitted no matter how skeptical they might have been of those jointly agreed to explanations. It is clearly spelled out in the Transcripts of the Hearing before Convocation that while the Solicitor, like any other in the same position, was at liberty to give evidence in relation to the agreed Statement of Facts it was to put it “into context, to provide the framework for the submissions he will make with respect to penalty.” (Transcript September 28, pg.69 line 21-33).

I note that the Solicitor and his Counsel repeatedly adopted the Agreed Statement of Facts at both stages of the Discipline Hearing and that Counsel for the Society never objected that the Solicitor was attempting to repudiate those facts. I do not find that the Solicitor’s explanation was at variance with the Agreed Statement of Facts. There was not one piece of evidence called by the Society’s Counsel to repudiate the Solicitor or to suggest that he acted dishonestly for a dishonest purpose. The Statement of Facts discloses no such motive, and the Solicitor admitted no dishonesty.

The reasons of Convocation places some emphasis on the extent of the inaccuracies and the admitted fact that his billing practice resulted in the billing of over 2000 hours that should not have been billed. There is the considerable evidence of the Solicitor which put those hours into context. Other than the examples given in Paragraph 9 of the Agreed Statement, there are no details given of how the parties arrived at that figure. We did not have the accounts before us in evidence. We were not told how many hours were disallowed as being in excess of the tariff, how many hours were described incorrectly, how many hours were for time that the Solicitor claimed to have spent on the file but could not be backed up with the necessary dockets and details of hours spent. In the absence of these details and any evidence suggesting dishonest conduct, I cannot find that the disallowance by the Ontario Legal Aid Plan of these hours, or roughly one third of the Solicitors total, can lead to a conclusion of dishonesty. My experience is that it is frequently difficult to discern why accounts have been reduced or (as is sometimes the case), increased. It has not been the practise to discipline lawyers by the mere fact that an account has been reduced by as much as one third by either Legal Aid or in the case of private retainers, the Taxing Master or Examiner. There must be, in addition, evidence of wrongdoing. It is noteworthy that there were 423 accounts examined here and the total reduction of hours amounted to under 5 hours per file. Given the evidence heard about the complexity, importance and difficulty of many of the Solicitor’s cases, I cannot find that prima facie the account of those hours must lead to a conclusion that they were deliberately prepared, knowing that they were false.

Similarly I find that any attempt to calculate what the Solicitor should have been billing based on what the average solicitor bills or what the average Bencher’s experience is, is both unhelpful and highly untrustworthy evidence. We know that the Solicitor’s accounts were allowed at a rate well above the Canadian Bar Association average. What is reasonable can only be determined by looking at each individual lawyer’s particular practice. Here the uncontradicted evidence is that the Solicitor worked exceedingly long hours almost continually, that he took work on vacation, that he was constantly on the phone (sometimes carrying on more than one conversation at once). Having heard the Solicitor give evidence I can accept that his phone conversations could be quite lengthy.

As I have already indicated it was not open to Convocation to make findings of fact based on evidence heard on the question of Penalty and apply it post facto to the admitted Misconduct Facts. But Convocation went beyond that in finding against the Solicitor for not calling independent evidence that he performed the services for which he billed (Decision Pg. 19 Paragraph 2.) This finding is wrong, I suggest, as it shifts the Burden of Proof to the Solicitor and in effect requires him to prove his innocence. As well it requires him to call evidence that goes to the Misconduct on the Penalty Hearing where it had no place. It is particularly regretful that the evidence of Mr. Kopyto’s accountant was interpreted in the way that it was. Mr. Norman testified about the Solicitor’s “complete integrity” and his “sticking to his guns because he feels he’s doing the right thing”. (Transcript, September 28, Pg 327-8), Mr. Norman used the Solicitor’s decision not to have him as his Accountant review his books as an illustration of the Solicitor’s “sticking to his guns”. Convocation appears to have turned it around into evidence that he was hiding something. It also ignores the Agreed – Fact that the Solicitor’s records were incomplete and inaccurate and therefore likely of little value to an accountant.

In concluding that the Solicitor must be disbarred the Discipline Committee made numerous derogatory comments about the Solicitor calling him “histrionic, bombastic”, “patently dishonest”. The Committee suggested that the Solicitor wanted “to tear down and smash” the legal process. He was accused of “repudiating himself with less difficulty and discomfort than is involved in changing his coat.” In my opinion these remarks and others in a similar vein were unnecessary, irrelevant and unhelpful. They illustrate a level of antagonism toward the Solicitor that was inconsistent with an objective detachment and could only give rise to a reasonable apprehension of bias on the part of the committee towards the Solicitor. The Solicitor’s Motions for a new Committee to deal with penalty should have been granted. The committee completely misinterpreted the agreed evidence of Brenda Ross which points away from dishonesty and supports the Solicitor’s position. Indeed Convocation appears to recognize the problems with the Decision by virtually ignoring the Decision and coming to its decision “entirely independent of the Committee’s reasons for recommendation as to penalty.” Yet having said that, Convocation came to the same conclusion as the Committee, that the Solicitor was dishonest. With respect, I find that there was no admissible evidence for that finding to be made at either stage, and that at both stages the disbelieved evidence of the Solicitor was used not merely to discredit that evidence but used as evidence of dishonesty; a use of which they were not entitled to make.

The Solicitor’s discipline record was used at both stages to support disbarment. His first offence was before he came a Solicitor and his name was not published, (presumably to protect him from the unwarranted consequences of being branded forever for the consequences of an indiscretion as a student). The offense, cheating at an exam was not used as a bar to his admission to the Society. Given that the offense was 16 years ago and the Solicitor was not yet one, it should be given little weight. It is perhaps analogous to an old and minor Youth Record’s relevance on an adult criminal matter. The second matter was a Reprimand in Committee for failing to attend court personally when so ordered by a District Court Judge. (Transcript August 11 Page 11 – 12). It is not an offense of dishonesty and I find it is of minimal relevance to this proceeding.

In viewing the entire facts here and deciding whether they justify disbarment I adopt the principles set out in Schumiatcher v. Law Society of Saskatchewan 58 W.W.R. 465 at page 477:

When a complaint is made against a solicitor which may result in his suspension or disbarment, effect should not be given thereto unless the grounds of the complaint are established by convincing evidence, and when the complaint involves a criminal act, by evidence beyond a reasonable doubt. In the assessment of the evidence, the solicitor’s explanation should be accepted if there is a reasonable probability of it being true.

In this case I would conclude the following:

1. There was no evidence that the Solicitor intentionally prepared false accounts.

2. There is no evidence of bad character. In fact all of the considerable evidence on the issue is of good character and honesty.

3. The onus in presenting the evidence rested with the Law Society.

4. The Agreed Statement of Facts was uncontradicted that the accounts were prepared as a result of the Solicitor guessing and estimating due to inadequate records.

5. It was never suggested by Counsel for the Society that the Solicitor was repudiating the Agreed Facts. There was no cross examination on his explanations.

6. The Solicitor entered a plea after much negotiation to a complaint that did not contain words that alleged fraud or dishonesty and it was not urged upon Convocation by Society’s Counsel to find that there was fraud or dishonesty.

7. The evidence as a whole of the Solicitor was credible, had a reasonable probability of being true was not cross examined by Counsel Brown v. Dunne (1893) 6R.67 and should have been accepted.

8. There is no evidence of any criminal charges having been laid.

9. The complaint was amended to describe “inaccurate accounts” from “deliberately submitted inflated accounts”. I find inaccurate to mean “not precise”.

10. Counsel for the Law Society took no position on Penalty. It would be inconsistent with their duty to the Society to make no submissions in circumstances that they felt clearly warranted disbarment.

11. If any of the facts are unclear or ambiguous the ambiguity must be resolved in favour of the Solicitor. If the facts here had revealed a “$150,000 Legal Aid fraud”, or any fraud, I would have had no hesitation in supporting the penalty of disbarment.

For the reasons given I believe this was not a case where disbarment or a  lengthy suspension should have been imposed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 14th DAY Of November 1989.

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Thomas J. P. Carey

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