Last Wednesday April 27, 2011, a three-person Law Society (LSUC) Hearing Panel met to hear arguments concerning a LSUC prosecutors’ motion to block Harry Kopyto’s challenge to the law which forced him and thousands of other paralegals to be placed under the control of their competitors — lawyers.
The LSUC’s prosecutors argued that the takeover law was a “political issue”. They accused Harry of believing in “a conspiracy by lawyers against paralegals”. They argued that his challenge to the law had nothing to do with assessing his good character which the Panel had been appointed to judge to allow him to continue his paralegal practice. They sought to finally block his constitutional challenge to By-law 4 passed under the Law Society Act which enables the LSUC to stop Harry from working as a paralegal. As Harry has already qualified to continue working as a paralegal under the LSUC rules in all other respects, the Panel is basically functioning as an admissions Panel.
LSUC IN CONFLICT OF INTEREST
The atmosphere in the Hearing Room was electric. Over 40 supporters listened intently to all the arguments from 9:30 a.m. to 4:00 p.m.
Harry response was to point out, first, that the Law Society’s unlimited control of paralegals directly affected his case because By-law 4 has put him in the position of having to demonstrate his good character after having successfully carried on his paralegal practice for period of over 20 years. Second, the very fact of the LSUC’s control over paralegals lay at the root of the unconstitutionality of the law. The Benchers (Directors) of the Law Society govern paralegals under this By-law. Over thirty Benchers are elected by about 45,000 lawyers (with zero paralegals) across Ontario every few years. The Benchers have the power to legislate all by-laws governing the legal and paralegal profession without any need for approval or review from the government. The Benchers control every aspect of the paralegal profession from deciding who is admitted (good character hearings are part of this scheme) to deciding what work paralegals can do. The law gives them a complete monopoly over legal services. As Harry put it humorously on a previous occasion, the LSUC eat paralegals for breakfast and use their bones as toothpicks. This is a dangerous monopoly to have. It is contrary to the principles of fair competition enshrined in the mandate of the federal Anti-Competition Bureau. The Law Society’s monopoly would be illegal without the provincial government’s authorizing law. But for this law, Harry’s good character hearing under the auspices of the LSUC monopoly would not be taking place.
In light of the potential for abuse of such a sweeping lawyers’ monopoly over an area so vital to the rule of law which is at the foundation of a democratic society, the Ontario government requires the LSUC to legislate and administer its powers in the public interest including ensuring access to justice by the public. But….it is lawyers who interpret what public interest is.
Harry’s argument is that By-law 4 places the LSUC in a conflict of interest position. As it is ultimately accountable to its electoral base made up exclusively of lawyers, the LSUC Benchers serve their electorates’ interests and wishes. Benchers accuse paralegals of “infringing” their exclusive domain of practice. Many Benchers have campaigned unreservedly in LSUC elections to restrict the work that paralegals are allowed to do under By-law 4. This is their mandate and obligation.
Pressure to restrict paralegals’ scope of practice has come particularly from the smaller law firms that compete directly with paralegals and who exert pressure on the LSUC through the Ontario Bar Association. After 35 years of opposing an obviously legally flawed takeover plan, the majority of Benchers were finally won over to take over their competition in 2002. The result has been a capricious, arbitrary and severe restriction of the work paralegals are allowed to do. Whereas before the law, paralegals could effectively do everything except work that higher courts allowed only lawyers to do, they are now restricted solely to representing clients in Small Claims Court and before various boards. No matter what the LSUC may pretend to believe, decreasing affordable justice by eliminating paralegal competition with lawyers in a variety of legal services — simple things like leases, wills, powers of attorney, simple real estate deals and undefended divorces — does not serve the public interest. It drives prices up for these services. Lawyers have reaped a great financial benefit at the expense of their competing paralegals. In other words, By-law 4 has given the foxes control over the chicken coop.
TAKEOVER LAW HARMS PUBLIC INTEREST
But more than that. The law has harmed the public which has less choice and has to pay higher fees because of the elimination of paralegal competition. The public interest is not only not being served — it is being violated with obscene enthusiasm and applause from lawyers who, through the LSUC, abuse their dominant position in the marketplace through what amounts to price-fixing.
The public interest is a jealous lover. It does not tolerate lawyers abusing their absolute power. Absolute power corrupts absolutely. The legislative scheme in By-law 4 is constitutionally deficient because of an inherent conflict — the LSUC Benchers serve the financial interest of their electors at the expense of promoting public access to affordable legal services by disallowing competition from paralegals. They pretend to ride one horse in two different directions at the same time. The contradiction is glaring.
LAWYERS CONTROL ADMISSIONS OF PARALEGALS
By-law 4 also allows lawyers to choose who will be allowed to practice as a paralegal. At every stage of the administration of the paralegals’ profession, lawyers in the majority make all the decisions, either directly or through their appointees, which includes paralegals co-opted into the administration of the system through the Paralegal Standing Committee and the two paralegal Bencher appointments that the Committee makes to mask actual control by their adversarial competitors.
Lawyers define what the public interest is in the administration of the admission process of paralegals. First, lawyers in their majority decide whose admission to work as a paralegal should be questioned. Second, they appoint the Panels judging paralegal candidates and decide if they will be allowed to work as paralegals. Such a scheme where one profession rules another exists in no other country in the world.
The same legislative scheme that gives lawyers a monopoly over the cost of legal services also gives them a monopoly on who is admitted to the paralegal profession. Their documented negative views of paralegals, their financial interests, their campaign promises as Benchers running on election platforms promising to protect lawyers’ turf predominate in every sphere of the administration of paralegals. This was illustrated in a very dramatic way when Bencher Judith Potter resigned as Chair of Harry’s second panel judging his character. The reason she gave for doing so at his January 10, 2011 hearing was because of an appearance of bias because of her advocacy in favour of reducing paralegals’ scope of practice. The dice are loaded.
The bias, however, is not personal to her but institutional. It flows from a comprehensive and integrated scheme which is at the heart of By-law 4. The issue always gets boiled down to: why are lawyers in control and who do they serve? Harry’s argument is that the legislative scheme is conceptually defective and inherently conflicted. By-law 4 cannot be edited to make it fit the constitutional principle of access to justice. Therefore, the public interest requires that By-law 4 as a whole be voided. This also means that Harry’s good character hearing, part of the overall scheme where lawyers control paralegals from top to bottom, also must be discontinued.
DIRECT CONFLICT WITH KOPYTO
The LSUC also has a more direct conflict with Harry. It is relying on its own controversial decision to disbar him in 1989 which is at the foundation of its attack on his character. It has a vested interest in doing so since it presumes, because of his disbarment, that he continues to lack good character. The LSUC prosecutors, moreover, are well aware and highly resistant to Harry’s efforts to seek disclosure of certain documents and illegal procedures that the LSUC used in effecting his controversial disbarment.
Another issue has been raised by Harry. The LSUC’s requires a paralegal to maintain public confidence in the ability of the legal profession to regulate itself — a right unabashedly denied to paralegals. Yet this is the very rule that Harry is challenging. Harry advocates public control and accountability of lawyers and paralegals. Why should he have to fit into the Law Society’s ideological mode to work as a paralegal?
From 1989 until 2007, when the Access to Justice Act containing By-law 4 came into effect, Harry worked as a grandparented paralegal fighting precedent setting cases that often shook up Big Law. He was a gadfly and a thorn in the side of the legal system. Notwithstanding his disbarment on phoney charges of fraud, for which he was never asked to pay back a cent to anybody and which resulted in the first written dissent in the Law Society’s 200 year history, Harry’s credibility was re-established in the public mind to a large extent. He appeared regularly on television programs commenting on the unfairness of various laws and exposing the biases in the system. For several years, he was featured in a weekly popular Toronto morning radio talk show. However, Harry created a major embarrassment for the legal elite in 2007 when he was successful in having Judge Marvin Zuker of the Ontario Court of Justice’s Family Court found guilty of judicial misconduct for falsifying a transcript of a hearing in which Zuker refused to allow Harry to represent a client before him. The unremorseful and vindictive Law Society did not hesitate to identify Harry’s role in this unprecedented exposé when it filed its disclosure documents against Harry in his good character hearing. Harry’s fearlessness in exposing the unfairness in the judicial system is their real concern. It was at that point that the order to take out a courageous fighter was issued by Big Law’s backroom boys.
HARRY FIGHTS BACK
Harry is fighting back. The LSUC’s motion to block Harry’s constitutional challenge to By-law 4 is continuing at 9:30 a.m. on Monday May 9, 2011 in the Museum Room at Osgoode Hall in downtown Toronto. His passionate and bold challenge to the Law Society’s pretensions of serving the public interest is exposing the fact that the Emperor’s new clothes are non-existent. The fig-leaf is gone. The Law Society stands naked under the glare of the well-documented legal arguments that Harry is presenting in challenging the Panel’s jurisdiction to judge his good character. At one point in the hearing last Wednesday, all those present as observers burst into spontaneous applause deeply moved by the incisive logic of his argument. The Blight Panel could not avoid noting this display of public support for Harry.
The Hearing Panel is headed by LSUC outsider Margo Blight, brought in to give (a veneer of?) an appearance of impartiality after two previously biased panels disintegrated. She has repeatedly said that she will be assiduously fair and impartial in dealing with Harry. Will she fairly judge Harry’s challenge to the constitutionality of By-Law 4 or will she only hear her Master’s voice? The presence of the public at next week’s hearing will play no small role in ensuring that Harry will be heard. It may have an impact on them.
Help defend the public interest. Be there.
Harry Kopyto Defence Committee