It is now five months since Harry Kopyto’s closing submissions to the firing squad masquerading as his Hearing Panel. Mired in conflicts of interest, documented bias and a caricature of fairness, the Hearing Panel now carefully crafts what may likely be the obituary of Harry’s legal career, deeming him of poor character despite the prosecutor’s admission of his “illustrious legal career” and the testimony of almost 25 clients attesting to Harry’s good character.
In this segment of his closing submissions, made by Harry on July 9, 2014, Harry meticulously turns the table on the judges’ panel. He goes to the root of how they are selected and the factors that shape their judgments—both conscious and unconscious. He unpacks the social and psychological roots of the LSUC Panel. He challenges them forcefully and explicitly to examine their influences and their motives by drawing attention to scientific knowledge. He challenges them, yet doesn’t explicitly accuse them. But, in the final analysis, he utters a “J’accuse” in the spirit of Emile Zola.
Establishment lawyer Margot Blight, was selected by the Law Society’s elite to channel their opposition to Harry in his admissibility hearing to be grandparented as a paralegal. Below is the third installment of a slightly edited version of his address. The remainder of his comments will continue to be presented serially on this blog.
Character Rarely Changes Overnight
What this hearing means to me has nothing to do with whether I can continue to work. I am addressing you in order to defend my character. When you evaluate my character, you are asked by the Rules to determine what my current character is. If you read any basic books on behavioural psychology that deal with character development and ethical and moral conduct, you will find that all the literature is unanimous on one point.
A person’s inner character rarely changes overnight. Of course, a brain injury or some kind of other trauma or epiphany can change a person’s neurological or physiological makeup. Some people even think that a revelatory religious experience could have an impact or dramatically alter a person’s character in a relatively short period of time, an opinion I express no view on. But, in any event, every definition of moral character includes a reference to qualities of personal behavioural patterns that do not change suddenly but persist consistently over a lengthy period of time. If they change at all, they change slowly and only in the expression of their external manifestations.
The Past Never Dies
Although you were asked to look at my ethical character and evaluate its current expression, the fact is, in reality, you are looking at qualities that have their roots and appearances a long time ago. I recall numerous statements made by the Chair of this Panel in the course of my giving evidence. “Oh, that happened so long ago. That has no bearing on your current character. Oh, that is of marginal significance. We are looking at your current character, Mr. Kopyto.” Yet, ironically, the very reason I am here is because of events that happened a long time ago—because of my disbarment in the 1980s.
The past never dies. The past is still with us. The past is here right now. The past lives and breathes in the present, and we are a sum of everything we have done and everything that has been done to us. That is our character, ultimately. If you review the other cases of other candidates who have had the pleasure of undergoing good character hearings, you will see that, although their current character is put in issue, there are innumerable instances in which an evaluation extends back to events that took place decades ago.
Look at the Distance of a Person’s Life
It is rare for a Hearing Panel dealing with admissibility issues to give no weight at all, or only background weight, to events that took place that put a person’s character into issue no matter their distance in time. People have been refused admission into legal advocacy professions even though they may have had a clean record for years and decades, either because of the enormous moral significance of their prior conduct or the absence of rehabilitation or other circumstances that speak to events in the far past but resonate into the present. So the true measure in practice, the true measure of a person, is best ascertained over the distance of his or her entire life.
The conclusion I ask you to draw is that, in evaluating my moral character, you should not disregard my entire life or reduce it into background and foreground. You should not disregard the role that I have played from the time that I reached a stage of moral maturity and was able to make moral choices.
Look at my moral character. Look at it currently. Look at it organically. Look at it holistically. In my case, events that took place before my birth [the Holocaust] defined my moral orientation. Look at the big picture. This is where the truth lies, the key to interpreting and understanding a person’s moral character.
You do Not See Me as I am—You See Me as You Are
I have said earlier that you do not see me as I am, but you see me as you are. What I meant by that is that your evaluation of me is based on your own experiences and life, and not only professional life. It is based on your social status. It is based on financial factors, your financial status. It is based on your social surroundings. It is based on the perceptions of those you associate with, those you work with, those who employ you, those you call your friends and those who—and this may be the most important factor—made an evaluation of you and placed you in a position where they respect and honour you to the point where they feel comfortable making you a judge of my character.
I am referring to the administration of the Law Society—the administration of the Law Society in the inner sanctum—what I call the deep state of the Law Society—that shapes, selects, and is ultimately responsible to members of the legal profession. To the extent that it is an honour to be placed in a position as a judge, they have expressed their confidence in you that you will make a proper decision in your judgment of me.
You are already aware that the very same Law Society who appointed you also appointed those who prosecute me. The very same people who appointed you also appointed those who question my character ab initio. I suggest to you this gives rise to cognitive dissonance.
The Benchers Control Everything
You are judging moral character. It is not a question of law. It is a question of perception. It is a question of a common ability that every human being has. There is no specialty required in knowing, in evaluating, a person’s character, moral character, ethical conduct. Every member of the public has the capacity to do that. So even though you may be appointed by lawyers, that does not mean that you apply their standards in evaluating my character. Yet that is what happens in real life.
The courts are centres of democracy. But you know what? There are 80,000 lawyers in Canada. There are 45,000 lawyers in Ontario. God knows how many of them vote to elect benchers, maybe one third, maybe at most one half. Those people elect the benchers, and ultimately, the benchers have control over everything. The benchers can decide that somebody should be prosecuted and delicensed or put through a licencing hearing. The benchers do not represent democracy. The benchers are elected only by lawyers and by a minority of lawyers, yet they have the authority of choosing the people who will decide who will become judges, who will become lawyers. They have complete and total veto power. So you have given 20,000 people who happen to be lawyers the power to decide who will exercise control over one of the three fundamental institutions of society. And that is the problem. That is not democratic. That is not responsive to the public interest.
Many of the benchers are shaped by their interest as lawyers rather than their interest in promoting the public interest. That is a big problem, and their perceptions of what is the public interest is shaped by their role as lawyers. So you have basically a stranglehold by members of a profession in determining who can have any significant role in the judicial system. That is why this situation is so different from other professional discipline bodies.
Not a Single Paralegal Advocated the Takeover of Paralegals by Lawyers
The courts deal with questions of law, and you should arguably have legal training to act as a judge in the courts. But here, the Law Society is not a court. The Law Society is not a body that has the legal authority to control the legal system. The Law Society has a contradictory role. Many people in the Law Society see themselves as advocating for lawyers. They have confused themselves with the Ontario Bar Association. Their reasoning is skewed by their sectoral interests.
There were 114 different organizations and individuals that made submissions to the Access to Justice Act committee hearings at the Ontario legislature on the Access to Justice Act. Not a single paralegal advocated the takeover of paralegals by lawyers because they knew lawyers were promoting their sectoral interests by taking over paralegals—the people they compete with. The fox wanted the keys to the henhouse.
So the Law Society is not like the courts. The judges in the courts have no sectoral interests. The courts don’t encapsulate this contradiction of judges having their own separate interests. The courts are there, chosen by a government that represents the people as a whole, and they have no inherent institutional conflict. The Law Society, on the other hand, often uses the authority and power that it has to protect the financial and expansionist interests of lawyers. It made three submissions to the Legislative Committee hearings favouring the takeover of paralegals. How kind of them…
This is an old story. In the 1920s and 1930s, when moral admissibility hearings started to develop in the United States and Canada, previously within judge’s jurisdiction, they were used to keep out immigrant professionals because there weren’t enough jobs for lawyers already called to the Bar.
Lawyers are human beings like everybody else, and when you put them in a position of conflict, then they will sometimes succumb. So what you have here is my moral character being judged by people who are selected because of sectoral interests. That conflicts with the kind of complete neutrality that they need to be my judges. That is a problem.
Who Chooses You? On What Basis? How is it Done?
I cannot say the selection of judges is a clear, transparent process, but there is probably no more opaque process in selecting adjudicators in a hearing like this than the one provided by the Law Society. Who chooses you? On what basis? How is it done? In my particular case, for example, the Chair of the Panel, the third chair after two earlier failed proceedings—she was appointed and she was asked to chair this Panel—she told us that she was here only to do a motion and maybe she will stick around and do the full hearing and maybe she won’t.
That doesn’t happen in a court of law. In a court of law, real judges have no conflict of interest. They don’t own loyalty to the people who appoint them. They are independent. Their duties are defined. They don’t pick who they judge. You [referring to the Panel] have no security of tenure. Every judge should have security of tenure. They can’t be fired. They can be completely independent. Yet you owe loyalty to those who appoint you. They decide what to pay you, unlike judges in the courts. You have a sense of obligation to them because they can get rid of you anytime they want. They can give you assignments or not give you assignments. They choose you because they think they know what decisions you’ll make… and maybe they know something we don’t know about your history and predilections…
Life is Written All Over You
No one knows what the thoughts are of those who appoint you. But this LSUC process differs from a real court process with a real judge who has independence, security of tenure, and is selected by a committee of public representatives instead of a minority of professionals who completely and totally control who can be an advocate and who can therefore apply to be a judge, and who can participate in one of the three most fundamental aspects of social and political life of this country—the entire judicial system.
You do not come to evaluate my character as a blank slate. Life is written all over you just as it is written all over me. The writing is there. Sometimes, life writes leaving deep grooves. Sometimes it marks the mind with powerful predispositions. Ironically, even though I am engaged in this process right now, I have to admit that very seldom are adjudicators influenced in making fundamental decisions merely by argument, merely by persuasion. Although they may believe that to be the case, adjudicators are not ordinarily aware of what shapes their dispositions in most cases.
Ultimately, an adjudicator does not base his or her decision on facts or evidence before her or him, but they base their decision on their recollection, their memory of that evidence. Even notes are based on selective recollection. The process is subconscious, much more complex than the formal model of adjudication would suggest. This is merely an iteration of what science has proven beyond dispute.
What is the Point of Having a Gate if You Don’t Keep Someone Out?
There is also something called loyalty. There is a documented predisposition to be loyal to those who hold you in high esteem and have appointed you to come back with a decision that you may perceive, subconsciously or otherwise, they would like you to make. If you are selected to determine whether or not I have poor character, there is a tendency to look for evidence and give weight to evidence and focus on evidence that gives weight to poor moral character. What is the point of having a gate if you don’t keep someone out?
Once again, this is a process which adjudicators can check only through self-awareness. Who wants to waste 50, 60, 70 or 100 days of hearings just to say, “Harry has a good moral character?” There is a subtle tendency to not give the same weight and maybe not even notice and not be able to absorb evidence that would undermine the presumption that brought you to the seat of judgment in the first place; that would indicate good character; that would indicate personal courage; that would indicate ability to sacrifice one’s own interests for the benefit of another; that would indicate a passion for justice; that would indicate a life based on an empathic orientation.
You may recall my evidence when I spoke about confirmation bias. You come to a hearing such as this already predisposed, and you hear and see what confirms your predisposition. It is called confirmation bias. Confirmation bias is the most commonly known phenomenon in the psychology of adjudication.
Also, it is interesting how the literature also talks about how people together behave differently than as individuals. Something happens when you have groupthink. Something happens when you can avoid taking personal responsibility for a decision where you are not the only one that makes it.
There is a tendency—not malicious—for people to remember what fits into their predispositions. People tend to remember, recall, and rely on evidence that fits into what they anticipate will be the case. Everyone has beliefs, even before they hear evidence, as to what the outcome will be, if not absolutely, if not firm conclusions, then they have their hypothesis. They have their inclinations. They have their suppositions that desensitize them to evidence that doesn’t confirm their thesis or contradicts it.
You Should be More Human
There are dozens and dozens of studies to that effect. Nobody questions it. This is why adjudicators have to be critical. This is why adjudicators have to be self‑aware, to remember that memory is highly selective. The weight you give to things you have heard is highly selective. This is probably what is meant by the statement that you can lie with facts. You choose what facts to listen to, and you ignore the others, and you come up with a lie. The biggest lies, the worst lies, are the ones we tell ourselves, because they are almost impossible to set aside.
THE CHAIR: I think that the Panel will agree with you, Mr. Kopyto, the main thrust of your submission is that the process in which we are involved in is a very human one with all of the attendant flaws.
KOPYTO: Actually, it is not that it is human, but that it should be more human.
to be continued…