The saga continues January 10, 2011 — LSUC protects Fleck while prosecutors rebuffed in effort to censor Kopyto



To recap.  The cast in the Kopyto drama.  A lead role belongs to Carl Fleck, Q.C., the Chair of a three-person Hearing Panel brought into existence when Kopyto filed a motion seeking directions for getting disclosure from the Law Society in the good character hearings against him.  But Fleck really wants to play another role.  He wants to be a Star. He wants to bring Kopyto down. He needs the accolades. He is still young enough to be appointed to the Bench.  He needs to bring Kopyto down.

Fleck has a lot of friends. Not friends that he necessarily knows personally, but friends who have studied the script, learned their lines well and know what to do to let Fleck strut his stuff across the stage.

Another cast member is Peter H. Griffin, from the highly esteemed firm of Lenczner Slaght, often described as Canada’s premier litigation firm. He plays a secondary but important role. The firm’s clients include McDonald’s, General Electric, United Steel Inc. and — don’t hold your breath! — the Law Society! Griffin’s supporting role is described below with stage directions.

A brief chronology to help you follow the plot line.

On September 23, 2010, Kopyto received a letter from the Discipline Department Prosecutors of the Law Society. It contained a transcript of a voicemail recorded message left weeks earlier by Chair Carl Fleck. The call was made to the Discipline Department prosecuting Kopyto.  In it, Fleck agreed to an adjournment requested by Susan Heakes, one of two Discipline Counsel prosecuting Harry. This adjournment was directed by her to Fleck but was sent to the office of the neutral administrator, the Tribunal Office which is the conduit for all such communications. It was a request for adjourning scheduled hearing dates for Kopyto’s good character hearing at that time set to proceed on September 28 and September 30, 2010.  Not a big deal, right?  All Fleck had to do was contact the Tribunal, ask for Kopyto’s concurrence and grant the adjournment through the Tribunal. That’s the way it’s done.  All communications by parties to the hearing panel must be sent through the Tribunal Office.  Strict protocol.  Except…Fleck broke it shamelessly by contacting the prosecutors directly.

Fleck knows the score.  Judges cannot be seen phoning prosecutors or those being judged directly for any reason.  That’s a big no-no.  He’s been an adjudicator lots of times on federal boards, for example.  Fleck usually runs a well-oiled machine. Bringing Kopyto down would boost his status and bring a thundering round of applause if not a standing ovation from the legal elite at the denouement of the play.  So…why did Fleck breach a fundamental obligation of a judge which forbids him to contact, without notice to the other side, one of the two parties before him?  Is it possible that he just doesn’t give a damn about Kopyto’s rights?  And doesn’t have the good judgment to hide it?

Fleck’s unilateral communication to the LSUC’s prosecutors was so ethically questionable that it was deflected within minutes by the (undoubtedly horrified) chief senior prosecution lawyer to the neutral LSUC Tribunal Office which Fleck should have called in the first place.

But hold on — there’s more. Fleck’s telephone message also showed he had already made his decision on the adjournment request without asking Kopyto for his position or, for that matter, without contacting the other two Panel members.  Another problem.  The Law Society Act says all decisions have to be made jointly.  Fleck’s conduct was definitely unscripted.

For Harry, this was the turning point in the drama. Fleck had already committed four other significant improprieties as Chair of his good character hearing in three previous Acts over three days of appearances. See the article “Why Kopyto Abandoned his Motion Challenging Law Society Disclosure Rules” for more details.  Kopyto now realized that he would never get a fair hearing from any Panel chaired by Fleck whose cavalier disregard for fundamental rights was so — what is that word lawyers use all the time? — so egregious!  On September 27, 2010, four days after receiving the transcript of Fleck’s telephone call, Kopyto withdrew his motion for directions regarding disclosure as well as his constitutional challenge to the Law Society’s unfair disclosure rules.  These were the motions that the Fleck Panel was set up to rule on.  His abandonment of the motion caused the Panel to dissolve as a Motions Panel.  He did so because he could not trust them to play fair with him.  His strained faith in Fleck’s ability to play the role of an objective judge (let alone be one) had finally withered.

But Fleck is not gone for good.  There he is, still peeking from behind the curtain, stage right, undoubtedly looking to return resurrected in the next Act. The LSUC has the right to reappoint him to chair Kopyto’s good character hearing on the merits.  So what to do?  Kopyto thinks…  Get Fleck disqualified! Kopyto wanted a finding that Fleck’s conduct was wrong and that therefore he was not fit to try him.  And that’s why, on September 27, 2010, Kopyto also filed a complaint with the Law Society’s Complaints Department regarding Fleck’s telephone call faux pas.  A copy of the Complaint is accessible here.

Kopyto soon received a letter from Peter Griffin (playing a supporting role, remember?) resolving the complaint in early November, 2010.  Why such unseemly haste?  It often takes the Complaints Department a year or longer to investigate and rule on a complaint.  But Big Law was anxious to show its solidarity with Fleck who was only recently inducted into their ranks.  With a complaint over his head, Fleck could not use his Conservative Party connections to be considered a candidate for judgeship, etc., etc, etc.

In his letter, Griffin advised Kopyto that the Law Society of Upper Canada had asked him to make a recommendation regarding Kopyto’s complaint against Fleck.  Presumably, this task was directed to Griffin rather then the LSUC Complaints Department in order to avoid the appearance of bias since Carl Fleck was not only the Chair of Kopyto’s Motion Panel but also a Bencher (Director) of the Law Society. The purpose of the referral to an “outside” lawyer was to provide an appearance of distance, of impartiality, and non-involvement by Benchers in the decision-making process.  A fresh attractive, new face on the stage was needed to camouflage their shenanigans.

Griffin’s appearance, however, (you can bet your booty he charges above ACTRA scale for what is only, after all, a bit part) is not so very, very credible. He also has a past (and a present). Lenczner Slaght has a lengthy history of pulling the fat out of the fire for the LSUC including representing it in numerous proceedings at various levels of appeal courts. They are the go-to guys when things get hot for the LSUC in the courts.  A truly independent counsel would have been someone whose firm had not been routinely involved in representing or working with the LSUC before.  Using a metaphor made famous by Kopyto decades earlier, “Lenczner Slaght and the Law Society are stuck together with Crazy Glue”.  Griffin is even employed by the LSUC in its Bar Admission Course as a lecturer.

However, the illusion of distance between Griffin and the LSUC is just a stage trick.  It dissipates further after a careful perusal of his brief letter to Kopyto, dated November 3, 2010, clearing Fleck of any impropriety and confirming that the LSUC has closed its file in the matter on the basis of his recommendation.  Without any explanation for his decision, Griffin concludes that Fleck did not engage in professional misconduct.  Take that, Kopyto!

There is an important subplot in this Act.  The Complaints Department is also charged with investigating a complaint against a lawyer for either professional misconduct or “conduct unbecoming a licencee”.  Griffin does not address that latter charge in his correspondence.  He avoids it like the plague. Is this because Fleck’s conduct clearly falls within the phrase “conduct unbecoming”?  (How could it not?)  A critical omission.  An innocent error by an otherwise super-sharp litigator? Or what some would call a coverup…  You decide.

But now, Kopyto took centre stage.  He appealed the LSUC decision to close its file on his complaint against Fleck to the LSUC’s Complaint’s Review Commissioner. This is a position established several years ago by the LSUC to review decisions not to act on complaints made against lawyers.   Once again, this right is more smoke and mirrors then real. The LSUC only takes action against lawyers in an infinitesimally tiny percentage of the close to 10,000 complaints it receives annually.  The Complaints Resolution Commissioner (Ombudsman), Stindar Lal, playing another supporting part to Fleck is far from independent from Big Law which dominates the LSUC.  Lal has a long list of supporting roles, winning rave reviews as a Deputy Minister in six Ontario government ministries and for the Federal Department of Justice.  Although his position with the LSUC puts his name in lights on the marquee, his script is tightly written as his powers are limited to mollifying disgruntled complainants. He cannot overturn the decisions.  No one gets hurt when all you can do is fire blanks.  Far from granting Lal security of tenure, the Law Society Act provides that Benchers can terminate him whenever they want to (albeit by a two-thirds vote).  A very short leash indeed.

The real directors of this drama who will script both Kopyto’s and Fleck’s fate are a chummy club of Patrician lawyers who have ultimate control over all of the LSUC’s main adjudicative, prosecutorial and investigative functions.  They are too shy to go on stage…

Meanwhile, we shift to the next scene. It opens with LSUC prosecutors attempting to block Kopyto from submitting an explanation of why he abandoned the motion and why he is asking that Fleck recuse himself from dealing with the legal costs consequences of such abandonment.

On November 1, 2010, Kopyto sent his Submissions including his Statement of Reasons for abandoning his motion as well as a copy of his complaint against Fleck to the Tribunal. He asked them to forward it to the Hearing Panel which had requested submissions and which is empowered to award costs against Kopyto for abandoning his motion.  Kopyto asked the Tribunal to tell Fleck that any additional submissions besides these documents would not carry any weight in light of his history with the Panel and a prior decision by Fleck to award costs against him without even offering him an opportunity to make submissions on the issue. (Several earlier Acts).  In response, the Law Society prosecutors wrote the Tribunal’s Office asking for immediate confirmation from the Tribunal that Kopyto’s documents and submissions would not be forwarded to the Hearing Panel.  In particular, co-prosecutor Ann-Katherine Dionne wrote the Tribunal indicating that “the Law Society does not consent to the Statement of Reasons for Abandonment of Motion and accompanying documents being forwarded to the Hearing Panel” and asked the Tribunal’s Office to “confirm immediately” that the documents will not be forwarded to the Hearing Panel.

The question arises: Why would Harry Kopyto require the Law Society’s prosecutor’s consent to file his submissions? What gives one party in an adversarial production the right to censor the other party’s submissions? Such conduct reflects an imperious attitude that disregards the rights of Kopyto to make submissions in whatever way he wants.  The Prosecutors’ conduct was bossy, bullying, threatening and authoritarian. They acted like little tin gods who can do no wrong and can quash fundamental rights with a stroke of a pen.

Not so.  Counsel for the Tribunal refused to give in. She wrote Ms. Dionne back refusing to censor Kopyto’s submissions. Realizing that its efforts to bully the Tribunal did not play out well for it, the LSUC prosecutors tactfully retreated but issued a more reserved request to Fleck to be given additional time to file a second response to Kopyto’s submissions. Apparently, they were so confident that they would get their way in blocking Kopyto that the prosecutors did not even bother responding to his submissions when they filed their own submissions two days after receiving his.  The Panel has recently decided to bend the rules again in the Prosecutors’ favour by letting them submit additional submissions well beyond the original deadline.

Kopyto now awaits the Panel’s decision on costs. He knows the show must go on. But the real questions on his mind — on everyone’s mind — are: what does the Law Society plan to do to him in the next Act? And ultimately, what will he face when the curtain goes up?  Join us January 10, 2010 (check back for details) as the saga continues…


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