James Zibarros testified at Harry Kopyto’s “good character” hearing on June 28, 2012. He will be cross-examined by Harry on July 18th. He is the third of three witnesses up to bat against Harry. Harry is defending himself. After 40 days of hearings over three years, the focus of the Law Society’s case against Harry is now clear. He is “ungovernable”. The proof? He has assisted clients with work that only lawyers are allowed to do.
The first lawyer who testified against him, Theresa MacLean, drew gasps when she admitted that Harry acted against her for 10 years without her reporting him for “unauthorized practice” to the Law Society. Why? She didn’t know she had to. Has she been charged for breaching the rule requiring lawyers to report unauthorized practice? Fat chance.
The second witness, Kevin Gauthier, a client of Harry’s, became fixated on an error made by Harry’s staff. Harry’s secretary signed Gauthier’s name to a legal brief believing she had his permission to do so. Kevin Gauthier had no disagreement with the brief. But he decided to withdraw it. That, of course, killed his case. He had no complaints about Harry’s legal work but was clearly devastated emotionally by being unable to find an affordable lawyer willing to represent him. Unfortunately, he cut off his nose to spite his face over an innocent mistake— even though the brief would very likely have helped him.
And now the curtain rises on James Zibarros, a lawyer who recently worked for the same legal mega-firm where the Chair, Margot Blight, of the three-person Law Society panel judging Harry, now works. Zibarros acted for a client (who later severed her connections with him) who was suing her husband. She sued Harry’s client alleging that he married her fraudulently to be sponsored to immigrate to Canada from Cuba.
The essence of Zibarros’ complaint was threefold:
(i) that he had the right to deal with the defendant directly without the benefit of Harry’s efforts to assist his client;
(ii) that Harry should not have been writing letters on the defendant’s behalf;
(iii) that Harry failed to agree to a settlement proposal made by Zibarros, thus frustrating the resolution of the claim.
Harry Tells a Different Story
Harry tells a different story. He was asked to represent the defendant for free by a former member of the Ontario Cabinet who was also a lawyer. The defendant was on social assistance and would not have been able to afford legal representation. The defendant disputed the claim. He denied the allegations against him and was eager to defend the claim, explaining that he had asked the plaintiff to live with him in Cuba. But he would be a tasty lunch for a shark like Zibarros who is a specialist and lecturer in litigation, is a member of the Bar in California and British Columbia and participates in numerous professional associations. Imagine the defendant who barely speaks English, requires translators and is completely unfamiliar with the legal process being eaten alive by Zibarros.
Zibarros clearly had a game plan. A light bulb flashed over his head. He knew right away that the defendant did not have the capacity to draft the legal documents and letters that he was receiving on his behalf. Although acting in person, all the documents and letters contained the contact information of Harry Kopyto. Zibarros called Harry’s number. He said he wanted to speak to the defendant whom he knew spoke Spanish. He appeared to show little interest initially in who Harry was. He did not ask Harry what his involvement in the lawsuit was. He didn’t even ask him what his last name was. He didn’t ask him who had drafted the defence document or any other documents or letters. He accepted Harry’s offer to respond on Harry’s client’s behalf whom Zibarros knew could not understand him. He didn’t ask Harry if the address used on the defence document was Harry’s. He was willfully blind to the obvious fact that Harry, who told him from the start that he was not a lawyer, was in fact doing all the paperwork on a case where only lawyers are permitted to act. None of this appeared to matter to Zibarros. None of this stopped Zibarros from phoning Harry repeatedly over several months, always initiating the calls.
Zibarros Not as Clever as He Thinks
Zibarros is not a stupid man (although maybe not as clever as he thinks he is). Zibarros wanted to establish a working relationship with this “mysterious” Harry, whom he later testified he thought was “a friend” of the defendant. He did not know very much about Harry. But there is one thing he must have known. Since Harry had told him that he was not a lawyer, and since Harry’s contact information was on all the letters and documents, not the defendant’s whose address he knew, and since Harry clearly had legal experience apparent from his telephone conversations, this mysterious friend of the defendant was obviously engaging in unauthorized practice. In Zibarros’ mind, Harry was vulnerable. And Zibarros knew that this fact could be used to his own client’s advantage.
This was his game plan. Involve Harry as much as possible in the lawsuit in implicating him in unauthorized practice. Don’t inquire into Harry’s status or personal background to create a situation of “plausible deniability” for not reporting Harry to the Law Society for unauthorized practice during this initial stage of the litigation. And try to compel Harry to force a settlement offer on Harry’s client to settle the lawsuit on terms dictated by Zibarros’ client. Zibarros undoubtedly knew how difficult it is to settle fraud cases. He likely knew his client could not afford his services to go to trial. He undoubtedly sought to exploit Harry’s vulnerability to overcome this obstacle. Clever, or what?
Harry repeatedly asked Zibarros to stop phoning him. But Zibarros was relentless. Zibarros put an offer to settle the case to Harry, trying to convince him it was an excellent offer and to sell it to the defendant. The unspoken threat was that Harry would be reported if he didn’t deliver the goods. The defendant, however, would have none of it. He did nothing wrong. Even if he wanted to settle the lawsuit, as an unemployed Cuban immigrant with no language skills, no marketable employment experience, no job and trying to live on social assistance in an expensive city like Toronto, how could he ever come up with settlement funds?
Zibarros Doesn’t Back Off
None of this convinced Zibarros to back off. Instead, he completely ignored Harry’s report of his client’s response and gave him a deadline by when he expected a positive response. Just after Kopyto received his final call on the deadline and told Zibarros that there was no deal, Zibarros suddenly—for the first time in their extensive dealings—asked Harry in detail who he was and to explain his role. Harry, who never denied his involvement in the case, answered all his questions fully. Without his hoped-for settlement, without being able to manipulate Harry to get Harry’s client to compromise his position and without Harry abandoning his efforts to protect and advance his client’s interests, Zibarros filed a complaint against Harry with the Law Society. It was payback time.
Zibarros’ complaints against Harry largely center around Harry’s shielding his client from Zibarros. Without Harry’s assistance provided without charge, Harry’s client would not have been able to file a defence, comply with the Rules of Civil Procedure, carry the lawsuit through its various stages and exercise his right to accessible justice. All Harry’s client’s legal rights, including equal treatment under the law, would have been illusory. His dignity, his legal integrity and his ability to contest an unjust court award would have been immolated in the flames of inaccessible injustice.
That’s what a sleazy character like Zibarros wanted and that’s what the Law Society defends and protects when it seeks to banish Harry from making the very same judicial system that now wants to destroy him, work for those who have no power and money. Zibarros, despite his shrewdness, his crafty agenda and his deceitful stance, overplayed his hand with Harry who would never sell out a client.
Zibarros’ goal throughout was to render Harry’s client vulnerable and defenceless. This was crystal-clear when Joseph Markin, a lawyer that Harry referred some cases to, represented Reynel at examinations for discovery. After attending such discoveries, Zibarros learned that Joe had been banned from “associating” with Harry. Did Zibarros file a complaint to the Law Society? No. Instead, he telephoned Joe and threatened to report him if he continued to assist Reynel (if Joe complied, he would stay mum—a promise Zibarros never kept). Thus, Zibarros blatantly revealed his own hand—to isolate Reynel, to threaten those who were helping him, to deny Reynel the constitutional right of access to justice. Yet Zibarros, wallowing in deceit, threats, abuse and fear—is in the eyes of the Law Society, the epitome of virtue; Kopyto, working pro bono, risking his career, giving hope to those with no alternative—an epigone of moral depravity.
How Will Blight Judge Harry?
It was Joe Markin, not Zibarros, who was scheduled to testify at Kopyto’s hearing on June 28th. A last minute switch left Kopyto unprepared to cross-examine Zibarros on that day. Zibarros is now scheduled to be cross-examined on Wednesday July 18th. Kopyto will defend himself against the false charges that he refused to identify himself and obstructed the resolution of the lawsuit.
How will the Blight Panel judge Harry? Clearly Harry is “guilty” of unauthorized practice. Will the Panel then conclude that he has “poor character” because he has breached a Law Society rule? Blight could conclude that the rule is there to protect the public from incompetent, unsupervised and unregulated quasi-lawyers. If Harry can’t play by the LSUC rules, why should he be admitted to LSUC membership?
But as Blight herself said, the public interest is a broad concept and the Panel can look at a variety of circumstances to assess whether Harry has the empathy, candour and honesty which is the core definition of good character. If they focus only on rule obedience as the conclusive test of good character (which was the position of the Law Society Investigator Adrian Greenaway who Blight indicated did not carry much weight with her), then Harry is already dead meat. On the other hand, if she expands the scope of her inquiry beyond rule obedience, she will have to take note of the following critical evidence of Harry’s empathy, honesty and candour:
- he took on a complex and lengthy case against a sharpie lawyer without financial or other benefit;
- the only alternative to Harry was no representation at all for his indigent client which would virtually mean an automatic judgment and no right to defend; that is, a constitutional wrong;
- Harry was open and above board in admitting all his dealings on the case. Zibarros’ evidence to the contrary is inconsistent. If he knew Harry was not a lawyer, he was required to report him to the Law Society right away. Zibarros said he thought Harry was Reynel’s friend. So what? Unauthorized practice rules apply equally to friends as well as any other non-lawyer.
Zibarros and Blight Cut From Same Cloth
In these circumstances, is Harry not justified in obeying a constitutional principle of access to justice that lies at the foundation of our judicial system rather than a rule or law that prohibits unauthorized practice? Will Blight rule that it is in the public interest to deny Harry’s client any possibility of defending himself? And where is the empathy in denying his client his day in court?
Blight has wide discretion in ruling on what is in the public interest in this case. A narrow vision will yield narrow results—a broad vision will acknowledge the fact that Harry was the only hope his client had for access justice. How Blight will judge this case ultimately depends on her own professional associations and obligations which shape her perspective.
Both she and Zibarros were or are employed by the same 700-member mega-law firm which represents public and government institutions. Both she and Zibarros are on call by the Law Society and lecture or adjudicate as requested and needed. Both she and Zibarros represent major corporations that seek to defend unsafe practices and corporate interests. Zibarros’ most recent claim to fame is his representation of Officer “Bubbles”—famous for his infamous role in the “Kettling” of the public during the G20 protests.
History Will Judge
Harry’s prosecution by the Law Society carries significance that goes well beyond the Blight Panel’s disclosure received from the Law Society which shows that it knew since his disbarment in 1989 that Harry had been engaged in unauthorized practice. This was confirmed by the LSUC investigator in his testimony. The LSUC cannot now turn against Harry when it tolerated his conduct for 20 years. In these circumstances how can breaking the rule the Law Society chose not to enforce and that denies a constitutional right be evidence of poor character?
Blight, who is institutionally bound to the Law Society, may attempt to avoid looking at the big picture. But Harry has rights of appeal that can overturn her Panel’s decision, if needed. Although Blight has broad discretion in assessing Harry’s character, given the highly subjective and ephemeral concept of good character, ultimately it is not Blight through pure intellectual reason, but social life through daily influences, that subconsciously determines where she will land.
Harry is laying the factual foundation in his good character hearing for a constitutional affirmation of the importance of access to legal justice. The struggle is far from over. However, Blight should know that Harry is not isolated in this battle and that he has supporters. She should know that they will continue to attend his hearings scheduled for July 18th and 20, 2012. Those who judge Harry should also know that they themselves are being judged by those who supervise their conduct. And ultimately, history will not only judge Harry’s character but also the character of the Panel members and his prosecutors with a verdict that may be surprising.
July 18 and 20, 2012. Osgoode Hall at 9:30 a.m. Join us at Harry’s next Law Society hearings to ensure justice is done.