Will She Stay or Will She Go?

The Gods Have Intervened

It’s hard to know where to begin. Once you jump through the rabbit-hole into the world of Big Law’s moral police, it’s a different reality.  What others may give you a medal for becomes evidence for the Law Society (LSUC) to impose professional capital punishment.  It was in that topsy-turvy world where Harry Kopyto stood his ground October 16, 2013 facing down the three judges selectively plucked by the elders of the legal establishment to judge his ethical character.

But, it felt different this time. On this day, it wasn’t Harry being judged. It was the Panel chair, Margot Blight. Harry had turned the tables. He was the accuser. She was the accused. She was accused by Harry of being biased.  She was accused by Harry of conflict of interest. And Harry was not letting go, hammering his points until the end of the day when the panel members, relieved of his forceful presentation, sheepishly slinked out of the hearing room to consider Blight’s plight.

You already know the story.  It’s Harry’s fifth year on trial for alleged poor moral character. There have been dozens and dozens of hearing days before three different panels.  In this war of attrition, the prize is Harry’s right to be grandparented as a paralegal.  The pretence of fairness by the current Panel has long ago been discarded.

It wasn’t looking good for Harry.  But the gods that rule the affairs of humans, from their distant perch on Mount Olympus, have watched the proceedings with dismay.  These masters of fate appear to have not been entirely pleased with the Panel’s treatment of Harry. They have seen the harassment. They have seen the sanctimonious attacks.  They have seen the condescending abuse.  They hate hubris. So they decided to give Harry a gift that might save his career that he never expected to receive. Like a ray of sunlight piercing through a leaden sky, they intervened to level the playing field.  Suddenly, the roles played out in the tragicomedy at Osgoode Hall’s trial of Harry Kopyto have now been reversed.  All that was solid has melted in the air.  And the judges who were judging Harry are now forced to judge one of their own.  So it was when the curtains parted on the October 16 hearing day.

 

Blight Was Blinded by Self-Interest

What gave rise to this remarkable change was a rather pedestrian event. Harry was asked by a disabled teacher, Mike Giftopoulos, to act for him on a human rights complaint. Mike’s school board refused to allow him full time work in spite of convincing medical evidence that he was able to do so after recovering from a heart attack.  Harry agreed to represent him on principle without a fee.  Unexpectedly, after reviewing the file in detail, Harry discovered that his Law Society Panel chair, Margot Blight, a practicing lawyer doing double duty as a moral guardian for Big Law, represented the school board against Mike. The optics of Blight sitting in judgment of Harry’s professional status while battling him before the Human Rights Tribunal were bad. This is when Blight stepped into it. She was blinded by self-interest.  Wishing to have her firm hang on to a well-paying client, she refused to sever the retainer. Instead of passing the case on to an outside law firm, she dropped the file off on the desk of a colleague from her same firm working down the hall from her. End of story?

 

What Was Blight Thinking?

But hold on a second…  What could she possibly have been thinking?  Ambitious, bold and overconfident, Blight acted with not enough circumspection. True, she did build a “firewall” between herself and her colleague to block the transmission of information regarding Mike’s case to her colleague from herself.  But such “ethical walls” are used to avoid potential conflicts of interest by isolating lawyers working in the same firm whose knowledge may jeopardize the retention of new clients. However, they have no application to lawyers who act as pro tem judges of legal representatives who oppose clients of their firms.

Blight acted impulsively. She just didn’t get it. She was trapped by her own facile cleverness, her firm’s self-interest and her formulaic thinking. She screwed up big time.  By continuing to retain the school board as a client, Blight’s firm institutionalized her conflict of interest—the firm continued to fight Mike using Blight’s colleague while Blight retained the authority as a Law Society judge to deny Harry the status that gave him the right to represent Mike.  Talk about professional incest!

As if this was not enough, hold on.  The worst was yet to come. Only one week after Blight built her firewall, with the flames still licking at her feet, at the August 29 hearing date, Kopyto announced to the Panel that Mike, whom Blight had brazenly thought she had finessed out of the game, volunteered to be a character witness at Harry’s hearing!  In other words, Mike wanted to testify about how Harry was handling his human rights case before the very same lawyer (now sitting as judge of Harry’s character) who had fought him tooth and nail in that case only days earlier.

 

A Quagmire of Conflict and Bias

That announcement sent the Panel reeling in disarray. Blight immediately postponed several scheduled August and September hearing dates to November “if needed”. She repeated almost compulsively how “serious” the situation had become and she began to scheme of ways to avoid the conflict.

First, she blithely ignored the Adjudicator’s Code of Conduct regarding how allegations of bias should be dealt with. The Code required her to first decide by herself whether she should resign after hearing Kopyto’s brief submissions alleging bias and conflict of interest.  Instead, she directed Kopyto to bring a formal motion before the full three-person panel to seek her recusal to be heard on October 16.  This gave the Law Society a chance to cross-examine Harry on an affidavit he was ordered to file—a fishing expedition that left the LSUC’s bucket empty. This manoeuvre also meant that Blight did not have to justify to the other two Panel members and the public why she chose not to resign and to place on the record what her prior involvement was with Mike. In other words, she denied the other panel members an opportunity to take their distance from her on an informed basis. Instead, she corralled them into making a joint decision with her.  On top of that, her silence about her involvement in Mike’s case left the impression she had something to hide.

With Harry’s client as a witness, Blight had clearly sunk deep into a quagmire of conflicts and bias.  How could she possibly impartially judge evidence from a witness for Harry whom she had acted against only days earlier? 

 

Like a Fly Caught in a Spider Web

Until Harry’s client decided to become a witness, Blight’s prior involvement in acting against Mike had only raised an issue of her conflict of interest. Her authority as a judge of Harry’s character gave her what courts call “outcome-determinative” authority. That was because she could rule Harry unqualified to represent Mike by denying Harry his paralegal licence. This would benefit the school board immensely.  Now, with Harry’s client as a witness before her, Blight would be subject to allegations that her prior involvement and knowledge of his case, which was central to Mike’s anticipated testimony about Harry, gave rise to an appearance of “attitudinal bias”; that is, a bias arising out of her prior knowledge and adversarial role against Mike. 

Like a fly caught in a spider’s web, every move Blight took to extricate herself entangled her in a web of self-interest more and more.  Her face flushed throughout parts of the October 16 hearing.  She gnawed her nails. She was unbalanced in her procedural rulings.  The escalating frustration she felt below the surface bubbled through her thinly-veiled pretence of decorum. Despite frequent eye contact with the Law Society chief prosecutor, Susan Heakes, whom she treats as her handmaiden, Blight evinced an undisguised element of despair. It was not a pretty sight.

 

Law Society Makes Bizarre Submissions

The October 16 hearing started an hour late.  The panel wanted to review the paperwork filed on the recusal motion in a fervent search for a key to unlock their dilemma.  They could not find one. Blight hopelessly fished for information to undermine Harry, even asking prosecutor Heakes to tell her what a recent blog article wrote about when Mike offered to be a witness for Harry. Blight violated her own rule not to refer to the blog and to place all evidence before her in an affidavit. She didn’t get the answer she wanted. 

Then she refused Harry from giving the citation of cases that he referred to as legal authorities because he had not produced the cases themselves. Paradoxically, she carefully noted the principles of law that they stood for, which of course, she could not question without citations. Then, she asked the prosecutors why they said in their factum that Harry placed himself in a conflict by failing to resign as Mike’s representative when he learned Blight was on the other side. The answer made no sense as Heakes claimed that both Blight and Harry should have withdrawn from Mike’s case

Finally, she asked Heakes whether she should have followed the Adjudicator’s Code of Conduct instead of lockstepping the other two panel members in a joint decision with her. The Code procedure was affirmed by the courts. Heakes’ response was that the Code was not “law” and therefore could be ignored. The Law Society’s positions were bizarre, unsupported by the legal cases and presented in a tepid and listless manner.

At the end of the day, the Law Society’s uninspired efforts to justify Blight’s continued participation on the Panel lay in tatters.  It was Harry’s day.

 

Harry Scores on All Points

A score card of the day’s proceedings would reveal the following results:

  • The Law Society prosecutors abandoned their preposterous main line of defence. Blight conceded that there was no evidence that Harry conspired with Mike, a respected and competent high school teacher for 25 years, to exchange his legal services for free to buy Mike’s testimony at his good character hearing.
  • The Law Society prosecutors also conceded that Mike’s evidence was relevant, thereby abandoning their second line of defence, which Blight suggested that the prosecutors pursue at the August 29 hearing date. 
  • There is no legal precedent for a lawyer sitting in judgment of the professional status of an opposing advocate to her firm to avoid a conflict of interest by building a firewall or in any other way.
  • A reasonable person might think that there was an appearance of bias in having Blight judge the testimony of a witness that her firm was opposing in litigation related to his testimony.
  • Mike Giftopoulos was rehired on a full-time basis only days after Harry took on the case making mincemeat of Blight’s efforts to justify her advocacy and defence of the abusive, discriminatory treatment against him by her client school board.
  • A reasonable person might suspect that Blight herself could benefit financially or otherwise by her firm’s continued involvement in opposing Harry’s client, thereby creating a financial conflict of interest.
  • A reasonable person might conclude that it would be difficult for Blight to disabuse herself of her prior knowledge of the witness’s case that he was going to testify about before her, especially given her adversarial role.
  • The currency of Blight’s involvement in litigation against Mike made an appearance of bias and conflict of interest even more cogent.
  • Mike’s evidence would touch on numerous issues relevant to the assessment of Harry’s moral character including his willingness to work for free on matters of principle, and his use of Mike’s case to expand the rights of other disabled employees.

 

Exactly What Will Happen is Not Known

At the end of the day, Blight announced that a decision on Harry’s motion would be made in writing before Tuesday November 12 and Wednesday November 13, the next scheduled hearing dates that she had previously scheduled “if needed”.  But this time, she admonished Harry to be prepared to proceed before the Panel on those days with or without her participation. While the option of continuing with only two panel members exists, Blight appeared overly confident that it is a viable proposal. When Harry succeeded two years earlier in having the chair of the second panel appointed to judge him disqualify herself by reason of perception of bias, the Law Society puppeteers who control the process dumped that entire panel and appointed Blight’s Panel afresh.

Exactly what will happen is not known.  Blight’s options are equally distasteful. She can refuse to resign, and, with the likely agreement of the other Panel members, continue with the hearings.  The other members could rule that she resign, an unlikely outcome. However, any decision Blight will make against Harry will likely be discredited as she will have given Harry a strong ground of appeal. If she decides to quit, she will leave in disgrace, having failed in her assigned mission for which she was specifically chosen from outside the roster of LSUC adjudicators.  In any event, the backroom boys are likely to appoint a fourth panel. One thing for sure—they can’t let Harry survive professionally.

 

Courage is Contagious

That is because courage is contagious.  Harry’s success strikes at the very nature of a legal system designed to serve the rich and powerful. His presence as an advocate will always be a thorn in the side of Big Law.  Ultimately, the personal conflict between Harry Kopyto and Margot Blight reflects the broader societal conflict between those that Blight serves and those that Harry serves. The legal system is a shadow that reflects the class forces at play in all social institutions.

Harry represents one side—employees, tenants, trade unionists, women, the disabled, the poor and homeless, the young and aged. Blight represents bosses, big governments, major corporations, polluters and industrial magnates and perpetrators of discriminatory and unsafe practices in the workplace.  Ultimately, what will decide Harry’s professional fate is the balance of forces between these two opposing social groupings. The more Harry attracts the support of his base, the more likely it is that he will survive professionally. This is why, whatever happens, Harry must be defended as a rare voice in a hostile environment fighting for real equality for those without money or power against the rich and powerful who can afford to buy justice. That is what Harry needs along with a little sympathy and occasional support from the gods on Mount Olympus in whose hands the fate of humanity rests.

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