Markin Throws the Game
The Law Society (LSUC) is nearing the homestretch. Its case to prove Harry’s poor character on his application to be grandparented as a paralegal is barely registering on the stadium scoreboard at Osgoode Hall where the game is being played. The LSUC management team is refocusing its strategy. The prosecution is in a huddle. The Hearing Panel, purportedly acting as an Umpire, now openly sets the prosecution’s agenda—go after vulnerabilities: Harry’s unauthorized practice, and association with Joseph Markin. So it put its recently recruited conscript player up to bat during the July 20, 2012 hearing. Joe Markin was to follow the script of two grillings recorded by the LSUC. But the Law Society saw its anticipated major slugger throw the game. And it didn’t take much.
Joe Markin was the most reluctant player in the lineup of lawyers subpoenaed by the LSUC to testify against Harry. He had already been penalized with a verbal reprimand for associating with Harry Kopyto, a disbarred lawyer, in breach of the LSUC rules five years earlier. So he was vulnerable to a powerplay by the LSUC. In addition, Markin’s physical ailments have included open-heart surgery, a stroke, amputation, diabetes and poor blood circulation. He is unable to manage his own law office because of his poor condition and lack of funds. He was not even in shape to play the game let alone hit a homerun for the LSUC. His crime? He took referrals from Harry for reasonable block fees from many clients who could not afford the hourly rate charged by most lawyers for high court appearances. That way, he was able to stay in the game.
The Law Society prosecutors added Joe Markin to their team’s lineup of witnesses only recently. It happened after the Chair, Margot Blight, of the three-person Panel determining if Harry should be licenced to work as a paralegal, expressed interest in Harry’s dealings with Markin. The prosecutors interpreted this as a not so subtle hint to call Markin to testify. Blight’s expressed interest in the alleged breach of the non-association order with Harry was likely prompted by the floundering score that the LSUC sustained when their other witnesses struck out trying to respond to the withering questions Harry tossed at them from the pitcher’s mound. But the LSUC also had what it considered unassailable evidence that Harry and Joe were still playing ball together in violation of the non-association order. Interesting how Blight, who, as a neutral umpire, is not allowed to take sides with the players, has no problems sending subliminal signals to the LSUC prosecution on what plays she would like to see them make.
LSUC Sandbags vulnerable Player
Markin had been called in by the LSUC for two tape-recorded interviews in 2009 and 2011. The interviews amounted to bullying sessions against a vulnerable and financially precarious lawyer by disgraced LSUC investigator Adrian Greenaway, (Harry scored a homerun against him when he testified as a witness earlier in the game.) Greenaway attempted to sandbag Markin during the first interview with him in 2009 by giving him little or no notice of the allegations he would review with him. The second interview was conducted with a little more notice to Markin but contained numerous curveballs and sucker pitches designed to trap Markin into making admissions that would implicate Kopyto as much as Markin in establishing their teamwork. The LSUC only plays hardball. This shameful abuse of a lawyer under duress resulted this April in an $8,000 costs order and a two-month suspension that Markin could not afford to challenge.
The transcripts of the interviews were at the core of the evidence the LSUC prosecutors sought to elicit from Markin as he was called up to bat at the hearing. One problem—Markin refused to play ball with the LSUC prosecutors. When he was asked to identify the transcripts, an essential step before they could be used to tie him down, he couldn’t recall what he said during the interviews. When asked to identify documents allegedly signed or prepared on his behalf by Harry over his name, he could not recall if he saw them. Time after time, he refused to swing at the dangerously lobbed balls the LSUC was pitching to him. End result—the LSUC’s star player failed to live up to the LSUC’s expectations. No strikes against him at all. He meandered leisurely all the way to home base with a round of applause from the bleachers full of Harry’s supporters.
The LSUC examination of Markin was left in such shambles that senior LSUC prosecutor Susan Heakes had to ask for an early break. She needed to research a point of law before ending her examination of Markin. It was apparent that she wanted to have him declared a hostile witness. Then, she could cross-examine him on the transcripts. But Blight, shrugging her shoulders reluctantly, called the play in Markin’s favour as the transcripts could not be used for cross-examination because Markin could not identify them. Heakes quickly discovered during her half-time research that Markin’s failure to recall his interview answers was not an inconsistency that she could use to have him declared a hostile witness. So she had to send Markin back to the dugout and passed the ball to Harry who entered the pitcher’s mound to take his turn.
Kopyto Hits a Homerun with Markin
It didn’t take Harry long to loosen up his pitching arm. His questioning of Markin was built on the evidence that Markin had already given to Heakes. In response to Heakes’ questioning about Harry earlier that day, Markin had given the following responses:
- Harry reminds him of a fighter like Superman: “Law, Justice and the American way”;
- Harry does a lot of pro bono work and Markin thinks he is crazy for doing so;
- Harry is not a personal friend;
- He doesn’t share Harry’s activist approach to the law; “He’s on the left; I’m on the right”;
- Most of the documents allegedly prepared without his knowledge were insignificant and wouldn’t stick in his memory but he would be concerned if unauthorized documents were sent out in his name;
- He believed he did nothing wrong in accepting retainers for Harry’s clients and using Harry’s secretary to do work for him on the side as he understood that this did not fall within the restrictive meaning of the word “association” contained in the Law Society Rules;
- The LSUC put an overly broad spin on the word “association” which he could not afford to hire a lawyer to oppose.
Law Society Goes after Markin to Get Harry
Harry’s cross-examination elicited the following additional admissions from Markin:
- Harry, whom he represented on his disbarment appeal, was unfairly treated as he was fully paid for his legal aid accounts and the ambiguous agreed statement of facts he had signed with the LSUC meant one thing to the LSUC and another to Harry;
- His impression was that the LSUC was very negative towards Harry and that investigator Greenaway was going after himself to build a case against Harry;
- He wouldn’t describe Harry as manipulative but rather that he was “a sucker” because of his low fees and large load of pro bono work;
- Markin testified that he wasn’t even told why he was called in for his first interview with Greenaway and that he didn’t bring counsel with him for the interview because he didn’t think he needed one, but couldn’t afford to, in any case;
- Markin testified that his powers of recollection for routine letters dictated over the phone to Harry’s secretary, with whom he had a private agreement to do his work, was not good and he was “apt to forget”;
- He confirmed that Harry’s provision of unauthorized practice services were known to the LSUC, which took no steps to charge him for violating the rules and seemed to tolerate it;
- If he had the means, he would have fought the restrictions imposed upon him for allegedly associating with Harry;
- No one from the LSUC had questioned the authenticity of his letter of reference on behalf of Harry, which the LSUC had argued was prepared by Harry’s office and was forged;
- There were about 20 cases referred to him by Harry that caused the law to evolve in which Harry gave Markin the thrust of the arguments that he successfully made in the courts;
- One of the witnesses used against both him and Harry, lawyer Theresa McLean, had a grudge against Markin because she lost an appeal won by him;
- As a rabbinical scholar and author of two books, Markin held the opinion that Harry’s avocation to use his practice to do good falls within the stricture of Talmudic law;
- He testified that failing to abide by rules was in itself not evidence of “poor character”.
Greenaway Bullies Markin on the Field of Play
It was apparent to everyone hearing Markin’s testimony that his health issues were critical to the bullying interrogation by Greenaway on the field of play and to the confused nature of Markin’s testimony. An assessment of Markin’s dealings with the LSUC should be informed by the fact that he was completely out of shape, lacked legal representation and the LSUC’s charges posed a threat to his livelihood. All of this was compounded by the stress of having to cope with his wife’s illness which has left her in hospital for an extended time. His vulnerability was further highlighted by prosecutor Heakes ominous and unsolicited comment to Blight that the LSUC was concerned about Markin’s lack of recollection on the witness stand. Where is the gamesmanship in making a threat like that? Is the LSUC such a poor loser that it descends to vindictiveness?
There is a certain disgust that wells in one’s mind at the unmitigated brutality of the Law Society’s embarrassing and inhuman tactics in pursuing its tunnel vision campaign to score against Harry. It is going for the win at all cost. Markin, who never stole a base in his life, is merely collateral damage. The LSUC’s shameless harassment of Joseph Markin raises other questions: how is the LSUC able to get away with it? What is the moral imperative in categorically pursuing Markin and Kopyto? Both these issues deserve comment. The LSUC writes the rules of the game, selects the umpire, chooses the venue, manages the scoreboard, calls the shots and broadcasts the game’s results with extensive commentary from its sportscasters. In other words, the fix is in.
LSUC Has Monopoly Stranglehold over Who Can Play
The oldest and most powerful regulating professional body in North America, seldom reined in by the courts and pumped full of millions of dollars paid by lawyers on pain of suspension from practice, the Law Society Club has few practical limits to its monopoly stranglehold over who can play. And its team usually consists of practiced and well-trained All-Stars. The game’s rules are also twisted in the LSUC’s favour.
Recall LSUC Investigator Greenaway’s response in his testimony to Harry’s question to him as to whether the LSUC would consider Harry attending Joe Markin’s daughter’s wedding in breach of the LSUC’s non-association order. He said, remarkably, that he doesn’t know. If he doesn’t know, who does? Who knows the limits of its authority on or off the playing field? Such uncertainty creates anxiety, confusion and fear within the professions that the LSUC regulates. The Law Society’s virulence and fixated single-mindedness is apparent from the wording of its order forbidding Markin from associating with Harry “in any way”. Harry is clearly deemed to have a contagious disease. Harry must be isolated from Joe because Joe might catch it.
The Law Society’s order, overbroad and therefore illegitimate, goes well beyond the LSUC’s statutory mandate. It is also in breach of the Charter of Rights’ guarantee of freedom of association. Equally important, it exposes the perverse mindset of the LSUC which is acting like a fanatical sect (think of the Church of Scientology) which forbids contact with persons expelled from its membership on pain of the offender herself or himself being expelled as well. No contact with the hostile outside world or you too will be excommunicated!
Ask your Lawyer What He Thinks of the LSUC
Ask your own lawyer what he thinks of the LSUC. Its “feed the hungry” program (one lunch a week) and pretensions of protecting the public interest scarcely mask its covert role in enforcing mindless obedience to rules so broad that a dozen Mack trucks could easily whiz through them undetected. Who you are and who you know, not what you do, are the key determinants of how the LSUC exercises its virtually unfettered discretion in its regulatory functions of the legal game. Self-delusion; that is, serving the interest of the legal profession while pretending to or actually believing it is serving the public interest, is inherent in the LSUC’s expansionist and controlling culture. The LSUC now employs over 500 employees compared to only a dozen in 1950.
The privileged elites of the legal profession, who were conceived between silk sheets to the manor born, condemn Harry and lawyers like Joseph Markin for providing legal representation to those toiling in the field unable to afford lawyers’ price-fixing fees. But what does the LSUC have to offer the majority of the public who can’t afford to assert and protect their legal rights? Is half a loaf not better than none at all? This question is not even asked, let alone answered, in the vision held by “neutral” adjudicators like Blight. With a history of representing government bodies before boards and commissions, Blight is so narrowly focused on details that the context of the cases including the absence of alternatives to most of Harry’s clients, is not even open for consideration.
What is truly morally reprehensible? To provide unauthorized services so that a person can at least have some access to the legal system? Or to just close your eyes and disenfranchise that person of the ability to seek the protection of the law, one of the most fundamental obligations of a civilized society? Who stands to be condemned morally? Harry Kopyto whose entire life has been inspired by a vision of justice? Or those who define what is morally right by requiring compulsive obedience to black letter rules written by and designed to protect the privileged few?
For the LSUC prosecutors’ team, the game is being played in their hometown with the Umpires being former members or supporters of their team while still integrated into their booster clubs. A fair game, it is not. But the game ain’t over until the fat lady sings. And there are still a few innings left to play before the scoreboard flashes the final results.