Law Society Panel Hears Kopyto, but is it listening?

Law Society design of By-law 4 contains conflict of interest

Will Margot Blight even allow Harry Kopyto to challenge the hostile takeover of the paralegal profession by their competing profession of lawyers?  The tag team of two lawyers assigned by Big Law to bury him professionally is trying to block him from arguing his challenge to the law that authorized the takeover.  It may succeed. And Harry may appeal.

The three-person Blight panel spent most of the last two hearing days (April 27th and May 9th 2011) listening to arguments on this issue back and forth. The legal issue is all about the Panel’s jurisdiction.  Harry argued that the design of the takeover law was flawed.  This law permits lawyers (42,000 of them) to elect 40 or so Law Society (LSUC) Directors (Benchers) every four years, while the 3,500 paralegals like him who have been forced to join the LSUC have no say. Harry and his fellow paralegals are nothing more than a disenfranchised internal colony of their competing profession who decide whether he and his colleagues can continue to work as paralegals.  Who suffers from this monopoly over legal services? The public. In whose name is this fraud perpetrated?  Why, “the public interest”, of course.

It was tough slogging as Harry argued that the takeover law (known as By-law 4 passed under the Law Society Act) that allows lawyers to appoint Ms. Blight and her Panel to judge if he has good character (needed to be a paralegal) is unconstitutional. And it also allows the LSUC to scam the public by cutting down to the bone the legal work competing paralegals are allow to do.

While the law says that it must serve the public good, the reality is that the LSUC, through By-law 4, protects lawyers from competitive price pressure — which certainly does not serve the public interest.  This is somewhat odd for a conservative profession that one would expect to support a free market and private enterprise. Harry also argued that the unaffordable cost of legal services impairs a constitutional principle — access to justice. In summary, By-law 4 is constitutionally flawed, contains an inherent conflict of interest in its design, and should not be given effect in Harry’s hearing — or for any other paralegal for that matter.

Right to argue case would be victory

Kopyto’s challenge to By-law 4 strikes at the heart of the takeover scheme that took decades to gestate.  Three Commissions, one by a widely respected Superior Court Judge, rejected it.  Virtually the entire paralegal profession opposed it.  Labour, women’s groups, the NDP (through its Justice Critic, Peter Kormos), and legal activists rallied to oppose it at legislative hearings.  But a Liberal and Conservative alliance rammed the takeover law written by their kissing cousins in the legal department of the LSUC through the Ontario Legislature with almost no debate and without changing a dot.

If Ms. Blight decides that the Panel has jurisdiction to hear Harry’s motion to question the law, it would be a major blow against Big Law.  It will threaten to unravel a carefully woven veil of deceit.  It will expose the LSUC’s vulnerability.  It will allow a public and focused exchange on an issue that the LSUC long ago sought to bury.

The takeover was a joint enterprise by Big Law and the Attorney-General of Ontario. These are entities that are not often questioned. Their matrix of power is considered impervious.  The optics of Harry even being allowed to argue his case is anathema to them.  The LSUC and the Ontario Attorney-General are linked at the hip.  If Harry were to merely gain the right to argue his case, it would be a victory because of its strong symbolism.  It would show that their authority can be challenged. Their virtually unlimited arsenal of powers which they use to intimidate and rule over legal service providers will be compromised by Harry’s success against the LSUC motion to block him from even arguing his constitutional challenge.

Willful blindness no option for panel

Harry asserted on April 27th and May 9th that Ms. Blight had the legal authority as well as the duty to rule on his challenge.  Good character hearings are part of the overall scheme in By-law 4, he said, which allows lawyers to manage every aspect of their governance over paralegals.  If an improper motive, bad faith or an unconstitutional effect (denial of access to justice) taints one aspect of the LSUC’s legislative scheme, then the design of the scheme as a whole is subject to scrutiny.  Willful blindness to harm caused to the public is not an option for those, like the panelists, who were appointed to perform a public function in the public interest.  It would be hypocritical and sanctimonious to apply the public interest in judging Harry but to ignore it in terms of their own personal involvement in a scheme that clearly makes a mockery of the public interest.

During the course of the hearings, Ms. Blight repeatedly attempted to get Kopyto to agree that the Panel’s jurisdiction was limited.  She reiterated, as if it were a mantra, the prosecutor’s odd example of how there were certain items of relief that she could not grant, such as pronouncing a divorce.  She cut Harry off when he tried to touch upon the merits of his constitutional challenge itself instead of confining himself to arguing whether the Panel could even deal with it.  She pointed out that a number of panelists were seconded to the LSUC to deal with over 100 good character hearings resulting from a surge of grandparenting applications because of By-law 4. She then made the bizarre suggestion that these panelists (including her Panel) were public appointees not subject to LSUC control. She even questioned the long-established legal principle that a Panel could rule on the constitutionality of its own enacting statute.

Blight’s loyalty is to her handlers

It should not be surprising that Blight is hesitant to allow Harry to argue his challenge on the merits. It is crystal clear that the LSUC sacrificed public access to justice in their turf war with paralegals. Blight would hardly relish the role of taking on Big Law and the Ontario government to side with Harry. There is nothing in her legal career to show she has an independent or critical perspective. Blight shows, at times, a pleasant and affable manner (for example, thanking Harry’s supporters for standing when she enters the hearing room), but her professional history is that of a loyal advocate of the legal establishment. She has defended the interests of the legal profession consistently in her earlier LSUC rulings.  In one case, she ruled that a lawyer should pay the LSUC the costs of a discipline hearing so that the legal profession should not be “burdened” with such an expense.  The LSUC appointed her to the Ontario Judicial Council dealing with sensitive complaints against judges in recognition of her management skills and dependable instincts.  While she has a mastery of formal law, the culture in which she is immersed is not amenable to bold legal insights which can shape the law to meet the real needs of the public and not just of those who surround her and who give her her walking papers.

Blight has opened most of Harry’s good character hearings by reminding those present of restrictions on audiotaping and videotaping within Osgoode Hall.  (An obvious effort to suppress and rebuke those who have posted videotaped interviews with Harry made at or after the hearings on the Net for various blogs.) She refused to acknowledge that an earlier panel had cleared Harry of charges of delay by the LSUC prosecutors because he did not have the transcript of the ruling before him when he made his objection.  One would have thought that the mere fact that the Law Society had refused to grant him disclosure for close to two years, which she finally ordered it to produce, at least in part, would have clearly indicated to her who had been delaying the proceedings.

Victory only a matter of time

In a few weeks, Ms. Blight will give written rulings on several of Harry’s motions including ones on issues involving who has the burden of proof and what standard of proof applies to good character hearings. And, of course, on whether the Panel has the jurisdiction to consider Harry’s challenge to By-law 4. But Harry is not holding his breath.

Where will the pieces fall?  Will Blight take a narrow, restrictive and timid approach to the challenge Harry has placed before her?  Or will she dare to expose the obvious deep fissures and conflict of interest in the design of the law that has placed her in a position where she is judging Harry’s professional future?  She does have a choice, but is she judicially disposed to fairly consider her options?  All Harry is asking her to do is to apply long-established legal principles backed by Supreme Court of Canada decisions. But does she have the commitment to justice and critical insight to question those who have put their trust in her to excoriate a thorn in the side of the legal system?  Not  likely.

If you are an applecart, you don’t have to worry so much about being overturned by Margot Blight. Blight appears as comfortable in the milieu of Big Law as Big Law appears comfortable with her.  In his appearances before two previous hostile Panels, Harry has described that, at times, he has felt like the lone, brave Beijing citizen standing in front of a row of tanks on a road leading to Tiennaman Square in 1989.  Blight may be more subtle then a squad of tanks but her legal heritage and outlook appear to have predisposed her to preserve the status quo.

Harry knows that nothing worthwhile comes easy.  His whole life has been dedicated to justice.  A loss at this stage would only whet his appetite.  There is always a right of appeal.  Whatever Ms. Blight in her wisdom may decide, the struggle for justice will continue.  Victory is only a matter of time.




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