When Kopyto shows up on Tuesday October 27th at 2:30 p.m. at the new digs of the Law Society Tribunal to argue his appeal, he will start with a bang. He will present a motion that strikes a dagger at the heart of the Law Society’s twisted and biased procedure in dealing with his appeal. He will be asking all five members of the Appeals Panel appointed by Law Society Tribunal Chair, Richard Wright, to resign. This is because the process by which they were appointed is controlled by the Benchers, the ruling body of the Law Society who are elected by lawyers who charged him in the first place.
It is Holy Grail that any system of judging people must be controlled by the judges themselves in the performance of their administrative role. Herman Melville wrote in his venerable novel, “Who’s to doom when the judge himself is dragged before the bar?” We demand that Richard Wright’s panel be dragged before the bar!
Lapdog Runs Law Society Tribunal
The gist of Kopyto’s motion to be argued before his appeal is that the Law Society controls the appointment and identify of the adjudicators sitting on his appeal through their lapdog, Richard Wright. Isn’t it obvious that this undermines the independence of the adjudicators. A rational and honest person would agree that this gives rise to the possibility, if not likelihood, of appointing adjudicators who will have the “correct” attitude to Kopyto. This is especially so since Kopyto is identified to potential adjudicators before they are asked to decide to sit on his appeal. In a real court, this process would be unacceptable. In Law Society land, when these so-called adjudicators smell the raw meat, they will start salivating.
Kopyto knows that his concern is not academic. In 1989, this same Law Society availed itself of the services of the late Ian Outerbridge, a far-right lawyer notorious for attacking medicare as a socialist plot. Outerbridge volunteered to chair the Law Society’s discipline panel that recommended Harry’s disbarment. This was deeply mired at the time with accusations of misuse of his trust account and fraud allegations. He was in desperate need of a diversion from public attention to an impending million-dollar-plus bankruptcy that was only weeks away. Nonetheless, the outrageous character of his decision to disbar Kopyto was so biased that the Law Society Benchers felt obliged to rewrite it from top to bottom.
Law Society Has Dog in the Race
Kopyto will therefore protest the selection by Richard Wright of the five adjudicators by asking them to recuse themselves because they are accountable for reappointment to a body that has a dog in the race.
Wright, the Law Society Tribunal Chair, who purportedly heads an “independent” and “disinterested” body from the Law Society itself, is in fact, under a short leash. He has unfettered discretion to appoint the judges of all persons appearing before the Tribunal. He is appointed every four years by the Benchers. If he doesn’t learn the tricks his masters want him to perform, they will get a new dog.
It took three appointments of three Panels before the Law Society was able to find a panel that could sustain Kopyto’s challenges to last long enough to judge Kopyto in his original hearing to see if he had the good character to be grandparented as a paralegal. The first Panel disappeared because it was not up to the job. The Chair of the second Panel appointed to judge Harry resigned because she admitted there was an appearance of bias in her appointment—something the then Tribunal Chair ignored when he appointed her. Finally, the Tribunal chair picked a Bay Street lawyer from the biggest and most establishment law firm in Canada to chair the panel that judged Kopyto. Margot Blight, who specializes in defusing scandals for government bodies, fit the bill as the “hitperson” to kill Kopyto’s career. Oh, how sweet and fair true justice is!
Random and Blind Selection
Kopyto will argue on Tuesday, October 27, 2015—that control over the assignment of judges by judges themselves is a minimal requirement needed to establish an independent adjudicating tribunal. Despite this universally recognized principle articulated by the Supreme Court of Canada, the Law Society still controls the assignment of adjudicators instead of adjudicators controlling this function themselves. The Law Society, ironically set up as a guardian of the legal process, has done exactly the opposite of what it should be doing. Outing the Tribunal to its new digs is merely physical separation—not administrative separation.
Kopyto has a second argument in his opening motion. He will be asking the appeal panel to recuse themselves because the selection process of adjudicators is also not made on a random and blind assignment basis. Academic studies have established that there is a low risk of selection bias where selection is random and blind without adjudicators first knowing and choosing whose appeal or hearing they will be adjudicating. Dozens of other jurisdictions in the U.S. and elsewhere now appoint judges on a rotating basis using a blank filing process.
Kopyto’s call on the five members of the Appeal Panel to recuse themselves from hearing his appeal is being made at a time when the Law Society is attempting to tweak its image of the Tribunal. Moving the Tribunal office outside of the ramparts of Osgoode Hall to an adjacent office building is only part of the renovation project. The decision to bring in a full-time chair, Richard Wright, previously putting out fires at the Human Rights Tribunal of Ontario as its head, is part of the makeover process.
Rally to Harry’s Appeal
Another aspect of the Law Society’s efforts to revamp the Tribunal’s image has been increased use of adjudicators from outside the seasoned and tested ranks of the Law Society Benchers themselves. Most of these appointees are politically connected or well-groomed sycophants. All this is part of the subterfuge to make it appear that Big Law is not running the show. The Law Society, however, has made sure that Benchers still form the core of its adjudicators—the critical mass necessary to make sure the Tribunal judges toe the line.
Kopyto’s motion exposes the fact that the independence of the adjudicators remains an illusion as the judges are given zero administrative autonomy. There is no reason to believe that Wright will not do his master’s bidding. Still, while this built-in bias structured into the administration of the Tribunal remains unchanged in all respects, it is not entirely out of the question that Kopyto’s argument may find backers.
True, the judges who will weigh Harry Kopyto’s arguments have themselves been selected by a process that undermines their neutrality. But the Law Society is not a monolith. It has cracks at its base and the rivets are coming loose over issues as diverse as unaffordable access to justice, monopoly control over the legal industry and blatant fee protectionism.
The presence of as many members of the public as possible at the hearing of Harry’s appeal is the only pressure Harry can exert to counterbalance the structural bias inherent in the Tribunal appeal process. Anyone who has participated in Harry’s defence and attended his good character hearings as well as the public at large is invited to rally to Harry’s appeal. Let the judges know that they themselves are being judged. The hearing will be held at 375 University Avenue (University south of Dundas), Room 402 from 2:30 p.m. to 4:30 p.m.