Silence may be golden; sometimes, it is not.
Take for example, the decision of the Appeal Division of the Law Society Tribunal that was released January 27th this year. You’ve heard this story many times before so here’s the Readers’ Digest version. Harry Kopyto was fighting for his professional life as a paralegal. He had a lengthy hearing before a Hearing Panel chaired by S. Margot Blight. During the hearing, she was asked to recuse herself because of an appearance of bias and a financial conflict of interest. She had been representing, in her day job, the employer of a witness called by Harry in his own defence before her. The witness was suing the employer. The witness was going to testify about Harry volunteering his services in that case and the fine work he did for him. Ms. Blight passed the file on to a colleague of hers in her same firm. That meant that the witness was going to be testifying before her about Harry while the witness was also suing her firm’s client. It also meant that Ms. Blight retained a financial interest in the defence and outcome of Harry’s witness’ case. In fact, speaking of the financial arrangements between her firm and its client being sued by the witness, Ms. Blight stated in paragraph 35:
The Panel rejects the candidate’s suggestions that these financial arrangements should be disclosed; they are privileged. It is nonetheless fair to assume that the chairperson has a financial interest of some kind.
The argument that Ms. Blight should resign from hearing Harry’s case because of this conflict and let the other two adjudicators continue without her was advanced vociferously by Harry in both his legal factum as well as in his oral submissions to the five-person Appeal Panel. So how did the Appeal Panel deal with it?
Silence. They simply ignored it.
Why the Silence?
Judging the evidence of a witness who is suing a client represented by your law firm is a big no-no for a judge. This issue is not open to debate. The law is crystal-clear. The appearance, let alone an active conflict of interest, is verboten. There could have been no outcome on appeal other than a finding that the Chair should have resigned. Ms. Blight even admitted the conflict. How could it be otherwise? She was evaluating the credibility and evidence of a witness her firm was being paid to oppose. The evidence of the witness related directly to Harry’s representation of him in that case. So why the silence? Could it be that reality is sometimes hard to face so that you pretend that it’s not there? Could it be that the Panel just couldn’t let Kopyto off the hook?
Consider this conundrum in the context of Harry’s second ground of appeal. He also argued that the Appeal Panel of the Tribunal itself was institutionally biased. This was because the Chair of the Tribunal, David Wright, was tasked with overlapping functions that undermined the Tribunal’s independence. Examples abound:
- He was accountable to his employer, the Law Society, for all its unspecified “policies and directives” that it might choose to make.
- He was subject to annual performance reviews that could lead to his dismissal.
- He had to make reports and carry out the Law Society’s “recommendations and developments regarding…the quality and performance of adjudicators” (spying and informing on his fellow judges).
- Where his functions as a judge overlapped with his administrative duties, he had to canvass the opinions of the Law Society’s senior bureaucrats—the Tribunal Manager and the Policy Director—before dealing with the matter. (And what do you think would happen if he disagreed with them?)
- If the Law Society failed to be enamored of the Director, the Law Society could legally fire him without any reason.
They See Their Own “Truth”
And what, dear reader, do you think the Appeal Panel ruled on Harry’s argument that these criss-crossed functions and numerous points of contact of the chief honcho of the Tribunal—himself also an adjudicator—rendered the Tribunal a mockery of real independence? Silence again. A silence that brings to mind an image from the animal world—three primates oblivious to any impropriety: “See no evil, hear no evil, speak no evil.”
If this were a regular court, another image that would come to mind from the animal world would include a reference to a large-footed Australian marsupial.
Biased adjudicators and judges detest inconvenient truths. They acknowledge only what fits into their pre-determined vision. What they exclude from consideration is just as important—sometimes more—than the facts they recite in their judgments. They see what they want to see. And what they want to see is not determined by pure judicial reasoning. Their decisions do not flow from the discovery of a cold, hard, objective, impersonal “truth.” They see what they expect to see. They see their own truth. Call it blinkered vision, tunnel vision, whatever…bottom line: what doesn’t fit in, doesn’t exist. They listened to Harry’s argument. They just didn’t hear him.
Self Aware They Are Not
The Law Society adjudicators are nurtured in a milieu of exclusivity. They share a sense that their positions as judges reflect their intelligence, merit and moral superiority. They thrive in an environment that encourages preservation of their esteemed status. When someone like Kopyto comes knocking on their door, all their presumptive memes and codas come into play, obscuring from vision what does not compute into their inbred algorithms. Their rulings emerge as legally fashioned dissertations mirroring the hackneyed prejudices common in the social milieus from which these adjudicators emerge. Their judicial pronouncements are not so much a product of conscious deceit or willful occlusion as an unconscious sieving of what passes through their selective cognitive grid as common sense. They wink at each other—no need to whisper. They know what to do. Self-aware they are not.
Kopyto’s arguments, if accepted, would topple the very structure that has placed the adjudicators on their elevated seats of judgment. They peer down derisively on us mere mortals but have enough guile not to let their prejudgment show. The instinct to circle the wagons and to defend their system is reflexive. Who wants to be disagreeable to their brethren let alone undermine their own status? Their default template is self-defence. What doesn’t reinforce their self-interest is excluded from examination. It’s just not there. Hence, total radio silence, a refusal to acknowledge arguments and facts that do not reflect their own unspoken assumptions become the internalized and subconscious norm.
A Mountain of Tired Legal Clichés
The psychology of blindness exemplified in the process of adjudicating Harry’s appeal arises from the shared elitist backgrounds of the adjudicators themselves. Selected from the business and professional world, most of the adjudicators are window-dressing chosen for their endemic reflex to acquiesce to authority. After all, that’s how they achieved success and recognition. The Panel Chairs who actually craft the decisions, like the Appeal Panel Chair, Linda Rothstein, are tried and true workhorses. The rest of the “outside” adjudicators are selected through murky procedures to represent the public. They are ready to eagerly endorse whatever the Chair pens. They share her weltanschung—self-righteous, haughty, self-important, sly, uncritical and self-absorbed—all qualities that likely helped them to the top of the heap in their own endeavors. They rarely, if ever, dissent. The pressure to conform is usually indirect but inevitable.
The Law Society Tribunal is a well-oiled machine encased in an impenetrable socially constructed bubble ensconced on the tip of a mountain of tired legal clichés. In Harry’s case, the Tribunal has carried out its mission by upholding, both at the hearing and appeal level, Kopyto’s unceremonious eviction from the ranks of legal advocates after 42 years of exposing the raw nerves of the judicial system.
Now, Harry turns to the only option available to him. He is already delivering his Notice of Judicial Review of the January 27, 2016 decision of the Law Society Tribunal’s Appeal Panel to the Divisional Court. Is he likely to get the silent treatment there as well?