No Need For A Fix — May 23 hearing part 2

Harry faces two days of grilling starting Thursday, June 6th and continuing Wednesday, June 19th before a Law Society Panel judging his character at the Museum room at Osgoode Hall,  at 9:30 a.m.  Fasten your seatbelts. The battle is likely to rage.

Has the Panel Prejudged Harry?

The panel has heard Harry’s evidence over several days.  What impact will it have on the panel?  Can Harry influence their eventual judgment of his character?

Harry rejects the simplistic view that hearing panels cannot be swayed, although he acknowledges the serious difficulties in doing so. First, he points out that he is dealing with three individual panel members each of whom has the right to express their own opinion. There is no requirement for unanimity. Minority dissents, though not frequent, can be made by panel members. Harry points out that each of the panel members has been ostensibly selected to bring their own perspective to their role. Their professional backgrounds are different.


Everyone Craves Approval and Wants to Please

All the panel members purport to support affordable access to justice.  They must also acknowledge the contributions Harry has made to the development of the law. Who can ignore it?  As Adrian Greenaway, the Law Society’s own discredited investigator acknowledged in his testimony, they too have to recognize Harry’s fearlessness. But that is only the beginning of an analysis of what shapes the Panel members’ perceptions of Harry.  So what is the likely outcome?

It may be worthwhile to consider each panel member one at a time.  One of the panel members has been appointed by the Law Society as the paralegal representative.  This fact alone has significance. Most paralegals feel colonized by disenfranchised membership in an organization controlled by their competitors. The selection of this panel member occurred through a process that is far from transparent. This suggests that she is more amenable than most to be under the LSUC’s sway. As a paralegal in private practice, her appointment to the panel judging Harry’s character is undoubtedly a flattering experience. Others so appointed from paralegal ranks have spoken openly about how such an appointment has given them a strong sense of self-worth.  Everyone craves approval.  Everyone wants to please those who honour them. With the esteem that such an appointment generates, it is likely that this person would want to live up to the expectations that the Law Society has of her.

Furthermore, there is a natural tendency to feel grateful for such recognition.  Anyone so elevated would want to show that the confidence assigned to them has not been misplaced. Therefore, there is a tendency to want to prove that their appointment was justified.  These impulses, largely subconscious, create an identity with those who have placed faith in this panel member.  How does this thought process develop? It begins with the belief that the Law Society exercised good judgment in appointing her. It is therefore more likely than not that it also exercises good judgment in general, including identifying Harry as a paralegal candidate with poor character.  That is likely the subliminal default thinking this appointee brings to her job of judging Harry. Wouldn’t most persons in her position think the same way?


Character Hearings Produce Poor Characters

Then there is the institutional mode that further shapes the approach of panel members to their task.  In the same sense that there is a widespread belief that the criminal courts are generally going to produce criminals, character hearings tend to produce poor characters. Where there is smoke, there must be fire.   Panel members are expected to be alert to character defects.  Think of the job of panel members as detectives equipped with giant magnifying glasses looking very, very carefully for any trace of poor character. Judges, like anyone else, tend to find what they are looking for.  In Harry’s case, his history of conflict with the Law Society, not even to speak of his disbarment, gives rise to a presumption of guilt.  Could it be otherwise?  Placing the onus on Harry to prove his innocence, rather than on the Law Society to prove his guilt, further erodes a panel member’s objectivity.  If you’re not sure, you follow the crowd.  If you have a theory, the tendency is to find the evidence you need to prove it.  You just don’t “see” the evidence that disproves it.

At this point, a number of other factors emerge that tend to predispose a panel member to have a negative perception of an already problematically identified candidate: the influence of a more experienced and erudite Panel Chair who is dominant to the point of making decisions throughout the hearing without consulting the other panel members; the inherent difficulty that a panel member who is new and inexperienced or who may not have legal training, would have in writing a dissenting view or developing an independent decision; the desire not to disappoint those who appointed you; the anticipation that a decision that would please those who appointed you would result in similar appointments in the future; and the natural inclination to follow the lead of the majority or of those more experienced in performing their duty as judges.


Harry is a “Difficult” Case

All of this feeds into conformist thinking and dependency.  Ergo, while the paralegal appointee may try her best to be fair, objective, independent and balanced, and undoubtedly believes she is, the selection process, the context, the social pressures, the institutional setting and the group dynamics render an independent or contrarian assessment a most difficult task. This is especially so since, like most persons the Law Society selects to be judges, she is chosen because she is inclined to believe that the Society adheres to its stated values.

On a subjective level, the Panel Chair also likely comes to her appointment bearing no malice or invidious personal dislike for Harry and may even admire some of his achievements. But her selection, following two previous panels who self-imploded, was made by the LSUC brood to finally put an end to the longest and most notoriously difficult hearing of a grandparenting paralegal applicant following the takeover of paralegals by the Law Society in 2007. She knows it.  She was selected to succeed where others have failed.  She had a choice.  She accepted the challenge. This fact may be the crux for understanding the Panel Chair’s orientation.

The panel chair brings a different set of baggage to her central function. She is not a blank slate.  Her selection was not random. She is imbued with the ideology of law and narrow legal reasoning.  She has a successful history of processing “difficult” subjects through institutional processes. This is her strength.  Her legal experience has been as a representative of governments and other public institutions. She is ensconced in one of the largest law firms in Canada. She works, in part, in its labour department where she restricts her labour practice to representing employers.


Laws do Not Drop Down From Heaven

She has also participated in judicial and quasi-judicial proceedings with the Canadian Human Rights Commission and the Justices of the Peace Review Council. This gives her intimate familiarity with institutions that maintain the smooth functioning of the status quo in the public sphere. She has mastered the rules of procedure and thinks strategically. And she identifies with her clients.  (For example, “I will not believe that the Law Society could breach its disclosure obligations,” she proclaimed, as the reason to refuse overview of the LSUC’s disclosure productions.)

Laws do not drop down from heaven—they are merely codified customs of existing social and economic relations.  One of the great conceits of the legal profession is that lawyers take their distance from their clients. The truth is exactly the opposite.  Since the birth of the modern court system, which originated with the growth of centres of trade in Europe 600 years ago, the preferred role of lawyers has always been to advance the interest of plaintiffs seeking to assert their financial claims against those who default on their financial obligations. In that sense, the law refracts, through the prism of formal equality, the inequality of existing social relations. The law is only fair and neutral in the sense that it is blind to real inequality. The rich as well as the poor are treated equally; they are both forbidden from sleeping under bridges. The law’s essence is to compel obedience.  There is no fix because there is no need for a fix.


Lawyers Identify With Clients

The ideology of the law is to promote the interests of plaintiffs. And the richer and more powerful the plaintiffs, the more lawyers identify with them.  It is this ideological construct that results in subliminal identification with the interests of those that hire her, that frames the legal reasoning processes that the panel chair brings to her work as a lawyer and that seeps into her perceptions as a judge.  Since the law ultimately reflects the interests of those who benefit from it and the power that they exercise in social life, the enforcement of those laws becomes the paramount factor in the exercise of discretion and judgment by those whose professional life is tied to those interests.  This is why the legal profession is inherently conservative; it generates subconscious legal rationalizations for the status quo.  (Take note: Harry opposes the status quo.)

Margot Blight’s professional history is a quintessential paradigm of such institutional ties.  Such an ideological predisposition does not bode well for an independent and critical evaluation of Harry’s moral character which is rooted in a commitment to a public constituency that occasionally requires that he clash with the Law Society’s own edicts and rules. From her perspective, the Law Society’s errors have a different significance.  In Ms. Blight’s view, the Law Society makes mistakes—it is not a systemic pattern. But Harry’s conduct that she disapproves of is a pattern—evidence of poor character and not a mistake.



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