Starting on the morning of July 9th, 2014 and continuing on July 10, 2014, Harry Kopyto presented his closing submissions to the Law Society of Upper Canada hearing panel judging his moral character to decide if he could continue to work as a legal advocate. Below is the second installment of an edited version of his comments. The remainder of his submissions will continue to be published serially on this blog.
Lawyers Control the Moral Character Evaluation Process
When you look at the case law—and I have looked at dozens of them, though not as many as the prosecution—you will see almost every single one of them contains a recitation of what constitutes moral character: courage, honesty, integrity, candor. And then you will see that in almost every single reason for finding poor character— the evidence has nothing to do with courage. It has nothing to do with candor. It has nothing to do with honesty. It has nothing to do with having a conscience. It has nothing to do with having a moral compass. It has nothing to do with bravery. It has to do with rules being broken, sometimes important rules, sometimes less important rules. You have this big broad list of the perfect qualities that a human being, a moral human being should have, and then you have the findings, and they all end up not addressing those issues.
It is my view and submission that lawyers control the moral character evaluation process. They dominate it. They rule it. They fashion it without street wisdom. They fashion it without suspicion of authority.
There are cases that say that the common man is more suspicious of authority when it comes to making judgments than lawyers. Lawyers make the decisions without sufficient tolerance of situational factors. Lawyers make the decisions on moral character without sufficient appreciation of complexity. They make the decisions without empathic perceptions. They are also influenced by who appoints them. This approach in evaluating my character is legalistic. It is formulaic. It is based on adherence to precedents. It is not imbued with human wisdom.
If You Follow the Rules, You Have Good Character
Lawyers approach the evaluation of moral character on the basis of legal ideology. The essence of it involves rule-obedience. If you break rules, you have a bad character. If you follow rules, you have a good character. This is all you know and all you need to know. Keep quiet. Do your job. Don’t steal. Follow every little rule. Dot each “i” and cross each “t” in the rule book and life will be good. You will have the corner office. You will have the $600 an hour salary. You will be looked after. You will eat in fine dining rooms. This is the essence of what shapes the ideology that lawyers share in evaluating good character. If you are visible, if you are seen, you may have a problem with your character. If you fit in, you don’t.
This ideological definition of good character complements another aspect of lawyers’ ideology, what I have called and I have spoken about and testified about called “possessive individualism.” You may recall the brilliant conceptual analysis of the sociology of professionals by the late political scientist, Professor C.B. Macpherson of the University of Toronto, an intellectual giant. What is possessive individualism? Professionals like lawyers, possess skills. These skills belong to the professional as an individual. They have been obtained through personal sacrifice and effort. The lawyers are free to sell their skills in the marketplace. The lawyer is free to command the best price for use of her skills. She is entitled to the monetary benefits of such skills, but only so long as she does no harm to others who share her profession or work in her professional environment. This means obeying all the rules.
“Pay Me What You Can Afford”
The doctrine of possessive individualism reduces good character to rule obedience. Rule obedience is a reductionist philosophy. It reduces the criteria for good character to one item and one item alone. It is obsessionist. It reflects an institutional pathological culture. Fixation on rule obedience as the primary criterion for assessing moral character arises out of, and reflects, what benefits the profession whose rules have been devised to ensure its survival. This ensures that justice is a commodity and lawyers possess this commodity and then sell it to the highest bidder.
When I was giving my testimony, I mentioned that I have told clients to “Pay me what you can afford.” I was asked by a panel member, “Mr. Kopyto, how do you know if they are telling you the truth?”
What has happened to imagination? Is it not possible that somebody with a strong moral compass would accept as true what somebody tells them about what they can afford? What if an advocate feels that it is much more important to provide access to justice than to verify that their hourly rate would be met? It is a different way of thinking. Lawyers’ perceptions cannot conceive that somebody may be motivated by seeking to provide affordable access to justice which does not fit into self-aggrandizing conduct—does not fit into this perception that lawyers share in which it is determined that the lawyer should sell himself in the market to the highest bidder. And if you don’t have the money, you don’t get access to justice.
Empathy versus Possessive Individualism
I ask you to reject this approach in evaluating my character. I know that the rules say that you shouldn’t make up your mind regarding my character until the case is in. I know that the rules say that you should have an open mind, even at this stage. You should be open to be influenced, even at this stage. I know people are able to change their perceptions or their evaluations. I know the three of you at least perceive that you have not finally made your personal judgments, as is your prescribed duty, and you are not just putting me through an exercise that is futile. So I ask you, in assessing my character, to try to understand that I don’t fit into the model of the elite lawyers who appointed you.
I ask you to reject the concept that lawyers can live the good life if they obey the rules and that is all you know and all you need to know. And if you don’t obey the rules, you have bad character and you should be denied access to membership in a profession with benefits. I ask you to follow another model in evaluating my character, one that is free of the narrow interests of sectoral evaluations.
I ask you to be open, to be independent, to be self‑aware, to exercise critical judgment. I want to put forward to you what I believe are the elements that constitute moral character that you should apply and look for in judging my character. In order to do that, or rather, prior to doing that, I would like to say a word about methodology. What approach should you take? What information should you be looking at? What evidence is critical and what criteria should be used in determining whether or not a person has a good moral character or a poor moral character?
Rules Obedience Trumps Empathy
Fortunately, we have clues from philosophers, from behavioural psychologists, from persons who have studied character development, from scientists, and from our own life experience that help us determine when a person has a good moral character or a poor moral character.
The emphasis in ethical studies identifies empathy as a critical quality: empathy versus possessive individualism; caring for others in opposition to caring for yourself; concern about rights, not about things; defining your character socially, not individually. That is what the whole body of ethics studies tells us is key in evaluating moral character—not rule obedience, not whether you have read the latest book on law, not even keeping accurate records of your billable hours.
It is somewhat odd that the Law Society prosecutors, who have a duty to present a balanced case, have failed to mention at all, or only minimally, the issue of empathy. Almost all that is written against me in their opening statement, their closing statement, in the Investigation Report, is about rule obedience. Is it possible that the Law Society, in evaluating moral character, is ignoring empathy as a criterion, as it is also ignoring the criterion of courage, another basic element of the definition of good moral character, because the evidence overwhelmingly is not in their favour and does not fit into their paradigm of my character?
Circles of Ethical Maturity
I want to tell you about something I read decades ago that bounces around in my mind when I try to define how I want to live my professional life as well as my personal life. I recall reading an article in Psychology Today that dealt with the issue of moral character. It dealt with what standards should be applied in determining the level of emotional maturity that defines a person’s level of personal ethical standards and moral responsibility.
The article delineated humanity into different categories, all placed in concentric circles from those that have the least developed moral maturity to those who have the highest. One category reflected the type of person who lives his life for himself and is focused primarily on his or her own personal enjoyment and financial interests. This person was symbolized in a diagram situated in a very large circle. Most people are preoccupied with personal survival.
Then there was a higher level of moral maturity, of ethical awareness, of ethical behaviour and responsibility. That is the kind of person who, in the course of his daily living and thinking, has concerns that are focused beyond his own personal and direct needs, but on the needs of his family, the needs of his friends, the needs of his neighbourhood. This person is represented by a somewhat smaller concentric circle encompassing fewer people.
Feeling the Pain Of Others As Your Own
A third level of ethical and emotional maturity is designated by an even smaller circle encompassing fewer persons. Persons in this category are concerned in their daily life and in the bulk of their activities with the well‑being of others in their workplace, their trade unions, their cities, their villages. All those who live and participate in the activities of these civic realms fall into this still smaller circle.
Then there is a fourth level. These people are active and involved to a very significant extent in national activities. This category includes people who relate to the pulse of their nation, of their culture, of their country, of their surroundings with defined limits usually extending well beyond their city or their provinces or states. These are persons who participate actively in the life of the political and social entities with which their lives intersect. These are people who have a sense of ethical responsibility, who vote and volunteer, who run for office, who accept positions of responsibility in voluntary institutions and organizations, who participate actively in the broad regions in which they live and work. They, of course, are represented by a still smaller circle that encompasses fewer people. They are people who are regarded as having significant value to society, people who exercise a civic responsibility to participate in institutions that involve issues of social benefit to a large number of persons and who participate actively with issues that may not affect them directly, but affect many of those around them that they would not ordinarily come into contact with on a daily basis or even in their lifetime. And finally, there is the tiniest circle. In this circle, you find people who experience the pain of others as if it was their own.
No Perceptual Limit To Compassion
You find the Good Samaritans in this circle.
You find people who have no perceptual limit to compassion and to the empathy and to the sense of social responsibility that they have to humanity as a whole. In this tiny circle few persons choose to be. These are people who are willing to sacrifice their own standing, their own interests, their own comforts, sometimes, even their professions and means of livelihood for the ideal of ending human suffering and for the betterment of humanity. The focus of their daily life is social. That is their primary motivation in most of their social activities. They dedicate whatever time they have on earth to help others and to contribute what they can with whatever limited abilities they have to the betterment of all persons who occupy this dying planet. They bear the burden of history on their shoulders.
They are people who structure their lives to fight the good fight, who work to defend the environment on a global scale, who seek to combat war, misery, hunger, who believe and advocate and organize their lives to create a society where every human being is entitled to the right to eat, to medical care, to education, to housing, to jobs, to a world free of want, to social justice and legal justice. These people find themselves in a tiny circle reserved for those who not only participate but dedicate their lives to the betterment of humanity. In this circle is what I, a long, long, long, long time ago, at the age of ten, committed myself to be in.
To a hammer, everything looks like a nail. I am far from perfect. I have a sense of obligation to society that led me to law. My success in fitting into this tiny circle is for you to judge, but that is where my aspirations have always been.
Not Squirrels Hiding Acorns
It is not enough to have a hobby to fit into this circle. It is not enough to dedicate your leisure time to be in the circle. You have to dedicate your life. And not only part of your life, not only your recent life, not only your current life, but your entire life, to give primary importance and expression on a daily basis, on an hourly basis, to the needs of humanity in order to aspire to being in that circle. If that means answering a phone call from a client who wants legal advice, who has had too much to drink on a Friday night at 11:40, that is what you do. His needs are your needs. You don’t judge his needs with a fine measure.
I mention my recollection of this article because I believe that applying the right methodology in evaluating a person’s character is important. The determination and assessment of a person’s moral character does not involve observing his current work and personal life under a magnifying glass and finding little imperfections and flaws here and there that are incidental to the main thrust and drive of his moral character.
You can always find imperfections, especially over 100 days of hearings or whatever number it has been for me since my application to be grandparented as a paralegal in 2009. However, the assessment of my character should not involve searching for a list of character defects, like squirrels hiding away acorns someplace in a cache to be reviewed, totaled and repackaged as cogent evidence of that person’s moral character in a decision yet to be written.
A Person’s Essence Does Not Change
In order to assess a person’s character properly, you don’t make a list of pluses and minuses and see what list is longer. Isolated bits and pieces of information will tell you no more about the subject of examination than, let’s say, what a sightless person may deduce about the appearance of an elephant only from touching its tail or trunk or tusk. It is a question of looking at the big picture. A long view of a person’s character spanning his entire life will reveal his true character. A person’s essence does not change. Outward manifestations of it may, but the core of his character remains life-long. When you look at a person’s character over the span of his whole life, then you discern the patterns, then you see the repetitive strokes that truly characterize that person.
Little isolated details here and there will tell you little or nothing about that person’s moral character, except, perhaps, that he has frailties, that he is human, that no one is morally pure in an absolutist sense, that he has imperfections and weaknesses of character as does every human being. The methodology I ask you to employ in judging my moral character is to look for the essence of my ethical makeup, not isolated frailties. Ultimately, they won’t tell you very much about the thrust of a person’s character, the main impetus to a person’s moral make‑up. It won’t tell you very much about the germane defining qualities that give a person’s life meaning to him and others. That is revealed only when you consider the whole spectrum of conduct, both horizontally and vertically, both from the beginning to the end of his life and across all the range of his activities.
That is your job. You are here to judge my moral character. Yet, the Law Society’s whole case against me is a roll‑up of every single rule that they believe I may have breached. That is it. That is the case against me. Is this the agenda you wish to follow?
Don’t Worry About Protecting the Public
You are being cast by the Law Society prosecutors to act like a posse on the hunt to hang somebody from the highest branch who has breached their self-serving rules, instead of searching to see what motivates the person you judge, what makes them tick. Yet, the case law says that you should have no concern in evaluating my character with respect to whether or not I am likely to offend. That is the case law. Look to see who I am now, not who I may become. Don’s assess me for what I have not done.
As you well know, I have undertaken to withdraw my application to be grandparented, so you don’t have to worry about me breaching rules as a licenced paralegal. You don’t have to worry about protecting the public from me. Whatever decision is made by you, either favourable or not favourable with respect to my moral character, I am past my retirement age. I have other things I want to do with my life.
This is not to say that I will give up my participation in the legal system in its entirety. I will continue to provide legal advice and legal services to members of the public in instances where they have no other affordable access, and I will do so for free, without charge. But you no longer have to worry about protecting the public in making your decision about my character…