Image Credit: Cliff MacArthur/provincialcourt.bc.ca

A distinguished BC Crown prosecutor who likely billed for millions of dollars of wages he found out later that he shouldn't have billed for has been found to have committed professional misconduct.

According to a May 9 BC Law Society decision, former BC Crown prosecutor James W Lees was in a rather unique position, working a full time job as a provincial Crown prosecutor, but also for the federal Crown on the side. For at least the last 14 years, he billed the federal government for his time in court, even when he was there for his regular job.

"He received double payment for his time every day in court," the Law Society decision reads. "Each day, the lawyer billed all of his time until the last federal file was called in court, even though he would be addressing provincial files within that time."

The decision says senior management was aware of how he billed for his time, but the issue wasn't flagged for almost 20 years.

The BC Law Society doesn't give a dollar figure for how much Lees was overpaid, but over the years it likely ran into the millions.

Lees became a lawyer in 1984 and two years later began working for the BC Prosecution Service, and remained there for 35 years. In the late nineties, he also started working for private law firms that had contracts with the federal prosecution service. He's considered an expert in charge approval.

In BC, most crimes are prosecuted by the provincial Crown, but some, largely drug offences, are prosecuted by the federal Crown. In 1996, while working for the provincial Crown, Lees started doing contract work for the federal Crown.

Between 2005 and 2020 he billed on average 25 to 30 hours per week for his federal court appearances, of which, about 70% was "waiting time."

However, during most of those waiting hours, Lees was in court anyway doing his full-time job as a provincial Crown prosecutor at the Surrey courthouse.

He also billed for travel time, even though he had to go to court for his regular job.

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No one was concerned, but over time, his workload began to grow. For the last 15 years, on average, he billed for 2,622 hours a year — roughly 50 hours per week.

While the decision doesn't say how much extra Lees was paid, based on the current lowest hourly rate for federal prosecutors of $112, it works out to $293,664 a year. Over 15 years that would be $4.4 million.

"These (hourly) figures arose because of the manner in which the lawyer had always billed, including travel time, available time, and waiting time, even when he was speaking to provincial cases in court," the BC Law Society decision reads.

The decision says Lees was told how to bill in the late nineties and continued to do it the same way after that.

"He obtained explicit approval from senior leadership at the BC Prosecution Service... as well as from the Public Prosecution Service of Canada and the firms, to handle BC Prosecution Service and Public Prosecution Service of Canada courtroom work on the same day," the Law Society said. "Over the years, BC Prosecution Service senior management at Surrey changed, but management was aware of his ongoing work as a federal agent and did not raise concerns with him."

He did seek some clarification in later years but was given the same billing direction.

"He relied on that direction," the decision says.

The decision says the BC Prosecution Service didn't know how Lees billed and didn't question him about it, and the federal prosecution service "apparently did not monitor or scrutinize the lawyer’s federal billings."

It was only after paying him the same way for more than 20 years, that the federal prosecution service then reported it to the BC Law Society in early 2021.

While Lees billed the same way for years, it was in 2006 that his hours ramped up and the Law Society only takes issue with his timesheets from 2006.

It's not known whether Lees was fired or resigned, but the decision says the BC Prosecution Service "terminated" his employment in October 2021.

In 2020, he made $227,915 working for the provincial Crown.

The Law Society said it was mitigating that Lees had a reputation as a hard-working, capable and respected prosecutor. He was designated Queen's Counsel in 2009 and was an expert in charge approval.

"He vigorously applied the charge assessment test, resulting in fewer charges being approved, saving the public substantial amounts," the Law Society said.

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The lawyer said he submitted his timesheet to his firm, which in turn submitted them to the federal prosecution service. The accounts would have been reviewed and audited over the years and he was never alerted to any concern or issue until 2021.

"Had the Public Prosecution Service or the law firms told him that his billings were unreasonable, he would have changed his billing practices," the decision says.

However, the Law Society said it was a lawyer's duty to not charge or accept a fee unless it is fair and reasonable.

"Although the lawyer may have honestly believed that his billings were reasonable, he was mistaken because he failed to appreciate that the changes in circumstances rendered his billings unreasonable," the Law Society said.

Lees signed a consent agreement admitting to professional misconduct.

There is no mention in the decision as to whether Lees will have to pay back any of the extra money he collected over the years. The Law Society didn't fine him, and there is no indication he's being sued by the Federal Prosecution Service.

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