Below you will find the fourth installment of Harry’s final submissions made on July 9, 2014 to the Law Society Panel judging his character. Harry pulled no punches. A decision finding that Harry had poor moral character and could no longer work as a paralegal, made March 2, 2015, is presently under appeal. In his Appeal, heard on October 27, 2015 by five members of the Law Society Appeal Panel, he questioned both the impartiality of the Appeal Panel as well as the hearing panel. See the blog article posted here. No decision has been rendered to date. Harry’s submissions to the original hearing panel, printed below, have been adapted from the original for emphasis and clarity.
It has been argued that I broke the Law Society’s by-law against unauthorized practice—hence, I must have poor character. It may be of importance, then, to explore whether submission to rules is an absolute and eternal moral positive.
There is an error in evaluating moral character from such a fixed perspective. It is rare that an act in itself is defined in all cases as having predetermined moral value. We know, for example, that it is not considered morally wrong to kill someone if it is done in a sanctioned war or to protect your own life. We need to consider with care what moral weight should be given to rule obedience. A breach of a rule has to be contextualized. It has to be reviewed in terms of available alternatives. We have to have regard to motivation. Public gain or harm to others enters the picture. What is to be gained by the impugned conduct? What is to be lost? We need to ask ourselves: Who suffers from this law? Who benefits from its enforcement?
Are the Clients Chopped Liver?
Think of my breaches of the unauthorized practice by-law. Almost everyone the Law Society called as a witness against me was a lawyer. The lawyers were there because I was invading their turf. Why did the Law Society not call my clients as witnesses? Aren’t they the ones the Society purports to protect? What about Reynel Lewis for whom I worked for free? What about Velma Demerson who a slew of lawyers refused to represent before she turned to me for help? Are my clients just so much chopped liver who have no entitlement to legal representation? Isn’t it a greater moral evil to deny them means to enforce their legal rights? Reynel won the right to stay in Canada. Velma won an apology and compensation for wrongful imprisonment. What rational human being could accuse someone of moral turpitude for helping them, without payment, to achieve justice? How can a person with a moral compass abandon her or his conscience in situations where the harm done by obeying a by-law is greater than the benefit of obeying it?
The federal law that prohibits persons who are not licenced immigration consultants from doing immigration work explicitly allows people who are unlicensed to do that work as long as they don’t charge fees. But the Law Society doesn’t allow free services by non-licensees at any time, no matter what the clients’ dire circumstances may be. Why not? Isn’t a denial of access to justice a greater moral wrong than blind cowering to a senseless by-law?
By-law Protects Lawyers’ Turf
You remember the discourse. You remember, don’t you, Mr. Sikand, [one of the three panel members assessing Kopyto’s character] asking the Law Society prosecutors, “What? You don’t allow someone to work for free?” It denies rationality that somebody should be condemned for having poor moral character because they provide legal services for free. Ask 99 people in the street whether somebody working without payment has poor character for breaching a by-law in order to give access to justice. You will have 100 answers saying no. Why such a rift in views between the Law Society and the public?
The unauthorized practice by-law protects lawyers’ turf. This is because of the inherent conflict in having the same body—the Law Society—that has its own sectoral interests, also adjudicate the rights of the public to legal representation.
The Law Society is the wealthiest, most politically connected body of professionals in Ontario. You want proof of this assertion? The Access to Justice Act that put paralegals like me under lawyers’ control—the Act that was passed by the Ontario legislature in 2006—was written word for word by the legal department of the Law Society. It put paralegals under control of the Law Society and put me here before you. That is just one example that proves the power and influence that the Law Society has. Some things are so notorious that you don’t really have to prove them. (Only pedantic lawyers would spend five hours trying to prove that people walk on their feet instead of on their hands.)
Put the Judges in the Dock with Me
Assume—for a moment—that it is immoral for someone to offer affordable access to justice for free when it would not otherwise be available. Should the late Justice Ron Thomas not join me in the dock because he allowed me to appear in Superior Court on a family law matter—verboten for paralegals to appear—in Brampton? Is he not also to be morally condemned? What about Justice Rouleau in Toronto who allowed me to appear in Superior Court for a client, Henri Kuntz, and even arranged a francophone translator and an electronic translation system so I could sit beside my client at counsel table and give him advice, all in blatant disregard of the Law Society prohibition of unauthorized practice and in defiant breach of Section 26.1(1) of the Law Society Act? Shouldn’t these judges have to justify their conduct to you?
Why has the Law Society never prosecuted me for unauthorized practice since 1989 when I was disbarred? There are at least a dozen, if not more, newspaper articles marked as exhibits—some front‑page news articles—which identified me as doing unauthorized practice in Superior Court cases. As well, in one court case, I admitted in an affidavit that I engaged in unauthorized practice. I never hid it. The Law Society received a copy of my affidavit, and a memo was drafted by a Law Society investigator in that case that I filed as an exhibit. It reads: “Re: Kopyto, January 30, 2001. (1) This should go to Nancy or Larry ASAP. Kopyto’s unauthorized practice by “assisting” plaintiffs in a Superior Court action injunction ASAP. (2), notify “complainants” and resolution compliance.” And then “NB, he admits providing the advice…”
Still no charge was laid.
Should the Law Society itself not be morally condemned for allowing me to engage in unauthorized practice in so many instances and not taking any action against me? “Who’s to doom when the judge himself is dragged before the bar?” as Captain Ahab exclaimed in Herbert Melvilles’ Moby Dick. The above cited case was just one of innumerable instances reported to the Law Society by disgruntled lawyers over a period of decades complaining that I was engaged in unauthorized practice. Yet the Society did zilch about it. Why?
Rule Obedience Not a Moral Divining Rod
The lesson to be learned is that rule obedience is not a moral divining rod. You can enter a state of paroxystic self-delusion through obsessive rule submission. You can become fetishized with rule obedience, blissfully blind to the circumstances that truly define its moral quality.
You know the story of Monsieur de Niozelles? Monsieur de Niozelles was punished with imprisonment for six years for failing to take his hat off in the presence of Louis the 14th in France. You wouldn’t want to be interred in the Chậteau d’If—a rocky, desolate outcrop off the windswept coast of Marseille—for six hours, let alone six years. That is where de Niozelles served his term—the howling winds chilling his bones in an exposed concrete-blocked dungeon—for refusing to remove his hat in defiance of authority.
I built my entire practice to provide judicial access to clients who couldn’t afford lawyers. Occasionally, I provided legal services to clients who could afford lawyers so that I could pay my overhead and maintain my practice to meet the needs of those who couldn’t. Is this evidence of poor moral character? The answer to this question has to be considered free from stilted ideological perceptions.
By-law Protects Price-Fixing Monopoly
The defining quality of good character is something that lawyers have no greater expertise in assessing than any other member of society. The person on the street is just as able to answer that question as the most senior judges sitting on the highest court benches in this country. But the Law Society’s perception is skewed by the financial self-interest of lawyers. They don’t want anybody elbowing into their terrain so they can maintain an insurmountable barbed wire fence around their scope of legal services to preserve their exclusive price-fixing monopoly.
What about the moral purity of the membership the Law Society itself? Lawyers, who control the Law Society, breach their own rules every day. The Law Society should be right here in the dock beside me. The Solicitors Act, Section 1, limits the charging of fees for representation in legal proceedings to lawyers, but paralegals, of course, charge fees just like lawyers. This provision is breached every day—but it is the law. It is in the Act. Is it not compelling evidence of poor moral character to routinely disobey it, assuming you are using rule obedience as the moral measuring standard?
What about the systemic breach of Section 3 of the Solicitors Act that states that Queen’s Counsel have precedence in court and that precedence for other counsel is to be set by year of call to the bar? It is rarely observed. Where is the moral condemnation of this disobedience of the law by—holy smoke!—judges themselves?
Law Society Runs Protection Racket
What about those judges who are defying the law which imposes double financial penalties to be paid by all persons convicted of certain crimes despite evidence of poverty? Dozens of judges have defied that law—a mass judicial defiance! Are we to regard their conduct as also a mass moral failure?
There is a law in Toronto that says you can’t play ball in the streets. It has been on the books for decades. Nobody has ever been charged with breaching it in living memory. The police ignore that law. They exercise discretion. They consider context.
There is a section in the Law Society Act that prevents the Law Society from telling members of the public that a lawyer has been found guilty and sanctioned for criminal conduct. It was passed to (supposedly) prevent a solicitor‑client relationship being breached. The guilty lawyer is allowed to practice and victimize the public again. This is an example of morally outrageous behavior by the Law Society, essentially running a protection racket.
You breach the rules if you are unlicensed and defend a parking ticket charge for free under the Law Society Act, but why is it morally justified to represent a client for free in an immigration case which decides if a person is going to be deported? Isn’t that an inconsistency at best and an unjust law at worst? You need to look at the context. You need to reject Pavlovian impulses. You need to ask questions: Are these rules outdated? Are these rules anomalies? Are these rules unjust in their cause and effect?
Law Society Binds Big Business to Big Law
I perceive the Law Society as harmful to the reputation of the legal profession and the integrity of the judicial system. The Law Society is not a beacon of unassailable moral righteousness. It is an overgrown, hierarchical, bureaucratic structure that links Big Law to Big Business and promotes unquestioning submission to the commodification of justice which the Law Society puts up for sale to the highest bidder.
There are lots of people that I respect who have breached a rule. I think of the Chair of the Board of Education in Peel who several years ago refused to implement provincially-imposed cutbacks which limited the availability of school supplies for students. I think of the Aboriginals in British Columbia who defied the law passed in the nineteenth century, which prevented them from engaging in the Potlatch ceremony. They broke this white man’s law designed to impose capitalist cultural values by banning the ceremony where excess material possessions were burned by the participating tribes in an annual ceremony. I consider these “lawbreakers” to be heroes.
When Injustice Becomes Law, Disobedience is an Obligation
When injustice becomes law, disobedience becomes a moral obligation. Legal change does not always take place gradually, cumulatively, incrementally. It takes place in fits and starts. It takes place when Rosa Parks, defying a racist law, decides she is no longer going to sit in the back of the bus in Montgomery, Alabama, thereby sparking a civil rights movement that overturned a century of racist laws. It takes place when somebody like Mandela breached apartheid laws. It takes place when Martin Luther King defied over 30 racist municipal and state ordinances. It takes place when workers in Canada organized trade unions in defiance of anti-conspiracy laws in the 1880s. It takes place when Edward Snowden renounces an oath of secrecy by exposing illegal mass surveillance. It takes place through civil disobedience, sometimes even uncivil disobedience.
Legal Change Sometimes Leaves a Big Mess
Social change is not polite. When justice is blocked, the dam can burst. Legal change sometimes leaves a big mess. It splatters and fractures the omnipotent-appearing legal edifices and laws shaped to maintain an unjust status quo. That is because, ultimately, what happens in law is a shadow of what happens in life. When social power relations change, the law also changes. Change is not always folded neatly.
I am aware that it is much easier to have a standard true for all times in evaluating a person’s moral character that draws definitive conclusions in absolute terms. But that is a crutch for lazy thinking, oblivious to the variable and relativistic ethical permutations of human conduct.
Always black, always white—no complexity: does this reflect ethical reality? I met Mr. Reynel Lewis, a Spanish-speaking immigrant sued in a high court case. He had no income to pay me. So I did my work without payment. I spent hours writing letters for him, communicating on his behalf, preparing documents, filing affidavits, so he could defend himself in an unjust case against him. He succeeded.
What does the Law Society say? Does it congratulate me for my sacrifice? For promoting legal access to justice? No. First it says I should have abandoned Reynel Lewis to avoid engaging in unauthorized practice. Then it says, “Mr. Kopyto, you breached another rule. You didn’t have a certified translator present when you met with Mr. Lewis in your office.” How can somebody be so cut off from reality as to condemn me for using Reynel’s girlfriend, who spoke English and Spanish perfectly, as a translator because she wasn’t certified as a translator? And for this, I am morally condemned? Excuse me! I pinch myself. Is this for real? What have the thousands of lawyers who are member of the Law Society done for him? They didn’t even show him the door because they didn’t even let him through their office doors in the first place.
Ms. Blight Facilitates Unauthorized Practice
You were the one, Ms. Blight! [the Chair of the hearing panel} You are the one. You are a party, Ms. Blight, to unauthorized practice. When Reynel asked you what the status of his case was when he finished testifying in this hearing, you told him, “Speak to Mr. Kopyto. He knows best.” That is what you told him. Don’t you remember? You told him to come to me for legal advice. This was a Superior Court case. You facilitated unauthorized practice. Does that mean that you have poor moral character? I don’t think so. What it does mean is that you were in touch with reality, for at least that one fleeting moment… and each of the 22 clients who testified here for me told the same story.
By the way, just a personal note on rule obedience. My family and I were victimized by a police force called the R.C.M.P. Security Service in the 1960s. I went to the federal archives in Ottawa and they had more than 900 pages of documents regarding me in the R.C.M.P. Security Service data bank from when I was a teenager up to the 1980s. That’s when the Security Service was disbanded, to a significant extent, as a result of public revelations of systemic criminality by the Security Service stemming from litigation I instituted for victims of their criminality.
R.C.M.P. Breaks the Law
The R.C.M.P. Security Service played dirty tricks against us routinely with total banality. I was lucky. All they did to me was send me bizarre mail to an address where nobody knew I was staying to cause confusion and uncertainty. They went to visit my mother aggravating a serious nervous condition she had through their intimidating conduct. The R.C.M.P. Security Service was forced to admit, through this litigation, among other revelations, that they broke the law under Operation Oddball and under Operation Checkmate in the 1950s, 1960s and 1970s until they were finally disbanded in the 1980s.
So, here I am, a victim of systemic law-breaking, a victim of sanctioned rule disobedience, a victim of a police force that broke the laws it swore to preserve, being told that I should not break laws even though I do not harm and provide access to a foundational right in a civilized society. The irony is beyond belief.
I spent eight and a half years trying to get justice for victims of Operation Checkmate working for free—but I have poor character? I am the one who has to be taught to obey rules? I am the one, bound by my conscience, who is ungovernable?
I do not hold myself above anyone on the scale of morality. But the day will come when a moral judgment will be given of those who appointed you to protect their privileged status. These bureaucrats, like ants programed genetically to feed their queen, are blinded by self-interest to the inequities of the rules and laws they have fashioned. If you still occupy the seats of judgment when that day of ultimate judgment comes to pass—give them a chance to crawl out of the moral morass in which they currently thrive blind to the consequences of their conduct. We are all in the gutter—but some of us strive to reach the stars.