LSUC gets by with the help of its friends
Why is it that when one person does something that offends a rule, he or she gets hammered and another person who does the same thing is not even called to account? That surely must have been the central question in everybody’s mind after Theresa McLean finished her testimony on May 31, 2012 before a Law Society panel deciding if Harry’s character is too poor to allow him to work as a paralegal.
McLean, herself a lawyer, testified that she had been sued in the high court by Andrew Lawrence, someone Harry was advising to her knowledge over a 10-year period. “Did you know that you were in breach of the Law Society [Rule 6.07(1)] requiring you to assist in preventing the unauthorized practice of law?” Kopyto asked her. “No, I did not know the Rule existed,” she replied, while affirming that Kopyto acted professionally throughout and describing him as “polite”.
The Law Society (LSUC), of course, knows that ignorance of the law is no excuse. But the shadows that spook the LSUC’s Victorian inner sanctum at Osgoode Hall have not even considered whether to charge Ms. McLean. Why not? It would be an airtight case. She has admitted her dealings with Kopyto since they spoke by phone in 2003. But it will never happen. That case will never be heard. No charge will ever be laid. After all, she testified against Harry, and Big Law looks after its friends.
Is that fair? Ask another lawyer, Joseph Markin. He will tell you how the LSUC hammer has nailed him for representing Harry’s clients in courts. First, it made an order in 2007 forbidding him from “associating” with Harry by acting as counsel in high court cases where Harry can’t appear. Then, it launched multiple investigations that lasted several years to try to prove that Mr. Markin continued representing clients in court that Harry was referring to him. Then, this April, it suspended Mr. Markin for 2 months after charging him with failing to prevent unauthorized practice and associating with Harry. One lawyer, Theresa McLean, is not even cautioned for breaching its rules by Big Law. Another, Joseph Markin, is subjected to interminable professional waterboarding for refusing to isolate Harry Kopyto and his clients. Is that fair?
Such selective prosecution allows the legal elite to target their critics like Kopyto. He has been a thorn in the side of the legal system since being called to the bar in 1974 and continuing as a paralegal following his disbarment on trumped-up charges of overbilling the Ontario Legal Aid Plan (for which it has never sought restitution!) in 1989.
Dissidents Crushed under LSUC’s iron Heel
The LSUC processes are opaque and secret, not subject to Freedom of Information law despite its public interest mandate, and it is accountable to no one. Without transparency and public oversight, it exercises unfettered discretion in choosing who to prosecute. As a result, Big Law’s friends, like Theresa McLean, who enthusiastically offered herself as a witness against Kopyto, stand above Big Law’s rules. And those who reject Big Law’s agenda get crushed under its iron heel. No wonder the vast majority of independent lawyers fear and hate the LSUC’s arbitrary abuse of its virtually limitless discretion.
McLean’s evidence revealed another point of vulnerability for the LSUC. McLean, like thousands of other lawyers who ignore unauthorized practice when they encounter it, expressed no concern with Harry helping his clients by engaging in “unauthorized practice”. Her acceptance of his right to help his client sue her over a 10-year period without a squawk from her reveals how little respect this rule garners among lawyers in general. It may be that many law firms, especially those too small to curry favour with the LSUC, implicitly recognize that it is not a crime to provide affordable justice to litigants who would otherwise be prevented from having their day in court.
The LSUC prosecution of Harry is chugging away like a runaway train. Every month this year up to November (except August) is peppered with numerous hearing dates. (Four in July and six in September alone!) Harry has repeatedly admitted helping people who can’t afford lawyers. Nonetheless, Theresa McLean and other lawyers are being paraded before the Panel to prove what Harry has already admitted, at the cost of thousands of dollars a day. It seems that volume trumps relevance for the prosecutorial team.
Kopyto gets Shafted—McLean Gets a Kiss
No one present at the May 31st good character hearing could escape the irony of McLean’s evidence. Here she was, admitting to conduct (known to the LSUC for at least two years) that she breached, with casual disdain, its rules by not reporting unauthorized practice. The LSUC regards such misconduct as serious as the allegation of unauthorized practice directed against Harry. Guilty of a similar crime, Kopyto gets the shaft and she gets a kiss.
McLean’s evidence shows an Achilles’ heel in Big Law’s case against Harry. The prosecution’s allegations that Kopyto encouraged his client to pursue an unmeritorious case faltered at the starting gate when McLean admitted that she did not know what advice Kopyto gave his client. Her attack on Harry’s client was also disparaging and classist—she described him as “not intelligent” citing that he was a high school drop-out who worked in an auto plant. She confirmed that Harry’s reputation as a disbarred lawyer fighting for judicial rights was widely known to her when she first started dealing with the case. This also undermined the LSUC’s position that Harry hid his disbarment from his clients. McLean could give no direct answer why she didn’t bring a quick end to an unmeritorious lawsuit that the LSUC said caused her tremendous harm, by bringing a summary judgment motion to dismiss it for lack of evidence. She even admitted that the claim against her was “well prepared” having lost a motion and a subsequent appeal in 2006 to the highest court in Ontario to strike the claim as being without legal foundation. The decision garnered widespread attention within the legal profession and in the media as a precedent-setting case because it clearly established that lawyers were not immune from being sued by litigants opposing clients that they represent.
Does good character require blind obedience to an unconstitutional rule?
The May 31, 2012 hearing saw LSUC Chair Margot Blight attempt to deflect McLean’s confused evidence. “The Panel wishes to help you by signaling that our concern centres on the issue of unauthorized practice, Mr. Kopyto,” Blight said, mimicking the prosecution’s shift in its strategy to emphasize Kopyto’s “ungovernability” rather than his alleged dishonesty. This adjustment in the LSUC’s case took place towards the end of 35 days of hearings which left the LSUC’s initial strategy of trying to picture Kopyto as dishonest in tatters.
So there you have it. It is poor character to help clients who can’t afford a lawyer. It is poor character to make access to affordable justice real. It is poor character to try to make the judicial system work for ordinary people who can’t pay a weeks’ salary for one hour of a lawyer’s time. And it is good character to blindly obey a rule that denies access to the courts, a fundamental constitutional principle.
Harry’s defence to the application of the unauthorized practice rule which he is challenging constitutionally received a big boost on May 22, 2012. Only a week before his May 29th appearance, B.C. Supreme Court Judge Mark McEwan struck down his province’s civil court hearing fees declaring “Some things cannot be for sale… The Court is an essential forum of that common life, and cannot perform the necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees.”
Kopyto has always acted for clients in all areas of practice where they could not afford a lawyer. He had been ignored by the Law Society for almost two decades because his prosecution, which would have to take place in a regular provincial court, administered independently of the LSUC, would give him a fair chance to challenge the rule.
The LSUC narrowly defines the public interest which it must serve. It proclaims that incompetence and dishonesty were rife among unregulated legal service providers. Hence, they had to take over their more affordable competitors and virtually castrate the paralegal profession by snipping its scope of practice to the bone. However, there is a big problem with this conceit. There has never been a wave of serious abuse by paralegals. By and large, they voluntarily took out insurance, held educational seminars, organized themselves in province-wide associations and kept the price of legal services low. Too low, it would seem, for the solo lawyers and small law firms that they competed with. The result? Twenty-five years of indecision by the LSUC was resolved in the early 2000s in favour of the financial lobby of the “smalls and solos” organized through the Ontario Bar Association. This lobby forced amendments to the Law Society Act imposing governance over paralegals by their competitors, driving legal fees higher and making a mockery of the LSUC’s advocacy of self-government. It is okay for lawyers. For paralegals—not so much. A takeover of one profession by another is unprecedented internationally. It also gives the word hypocrisy a new dimension.
Unauthorized practice is not ideal. Harry campaigned publicly for joint regulation of paralegals by the public and their own associations, not by their competitors. But when the choice is unauthorized practice or walking away from injustice, Harry’s choice was made for him.
Kopyto in clutches of Fortress Osgoode
But now the LSUC has him in their clutches inside Fortress Osgoode. Now, one secretive cabal decides what by-laws Harry must obey, if he should be charged with violating those by-laws, what the charges should be, who should try him and it even appoints the Panel that will hear his appeal if he is found guilty under their biased rules. Wow—and we thought the Star Chamber was long gone…
Kopyto has continued to help clients by competently doing lawyer’s work since 2007 after he applied to be grandparented as a paralegal. He has done so without denying his involvement. He is engaging in an honourable tradition of civil disobedience directed against an unjust law just as the people of Quebec are doing against Charest’s Bill 78 restricting their right to protest. He has put his professional body on the line to squarely challenge the restrictions on his efforts to make equal access to justice real.
The B.C. Bar Association, in hailing the decision of Justice McEwan, stated “This decision reaffirms that the courts exist for both the rich and the poor, those with small cases and those with large cases.” The Law Society suffers from an ideological view of lawyers that sees their legal skills and status as personal property. A lawyer can trade his skills in the marketplace for his own material benefit. He has no obligation to use his skills and knowledge to the benefit of his community or society. Such a selfish and unending thirst for consumption can never be sated. This culture and the dogmatic rules that flow from it affects the rationality and contemplation of those who adhere to it. But it also affects their moral judgment. As a result, Big Law does not see that access to legal justice, which is the most fundamental function of a legal system, is just not there for the majority of Canadians because of economic barriers caused by a monopoly over the provision of legal services.
Should we be laughing or crying?
Big Law is blinded by its unconscious adherence to possessive individualism and its obsession with manufacturing obedience to rules that serve its economic interests. Those whose conduct belies compassion, empathy and feeling the pain of others as their own sit in sanctimonious judgment of someone who tries to make their system work for those without money or power. Should we be laughing or crying?
Kopyto asks: “Where is the honour in letting your fellow human beings suffer when you can help them? Where is the dignity? Where is the grandeur? How can I look at myself in the mirror every morning if I ignore injustice? How can I obey the oppressive rules of a system that prevents the majority from accessing it? Self-delusion or self-respect—there is no third way. The pieces will fall where they may when the game is done. But I will not be a hypocrite even if it costs me my livelihood”.
Harry’s next hearing dates are Tuesday June 19, 2012 and Thursday June 28, 2012 in the Museum Room at Osgoode Hall in Toronto, starting at 9:30 a.m. Be there to support Harry.