Below is the second last installation of an adapted version of the submissions made by Harry Kopyto on July 9, 2015 before to the Law Society Hearing Panel chaired by Margot Blight which ruled that Harry Kopyto lacked the good character needed to practice as a legal advocate.
Harry has appealed her decision, which was upheld by a Law Society Appeal Panel, to the Divisional Court of Ontario. A date for the hearing of Harry’s appeal should be available shortly.
The challenge before you is not to acquiesce to a culture of prosecution, a culture of presumed guilt, a culture of haughty attitudes and demeaning perceptions of those of us whose professional fate lies at your feet. You can resist the power structure that wants you to stand silent in ignorance of the narratives of the public at large that I am part of.
Those who appointed you want to create a fear with studded elements of panic imbedded in it. “If you don’t bring Kopyto to heel, a man who celebrates rule-breaking, there will be countless victims. The public interest needs to be defended.”
These fears are artificial, crafted by savvy spinmeisters. Look at my exhibit entitled, “Why the Law Society Should Not Be Regulating Paralegals.” For decades, paralegals have had their own insurance, their own seminars, have educated themselves and banded together for mutual benefit. Many of these same paralegals who were heads of these organizations like Paul Dray, right now play a prominent role within the Law Society Paralegal Committee and, changing colours, now pronounce that regulating paralegals whose self-organization they were once proud of, is like trying to herd a bunch of cats.
We Have Been Good
We have been good. We have done good without being regulated. Don’t condemn us holus‑bolus. There is no basis to contrive a need to protect the public from so-called illegal, incompetent paralegals. Recognize that the real motive for the takeover of paralegals by lawyers has only ostensibly been to protect the public interest. In fact, it has been to protect the thick wallets bulging in back pockets hidden under the flowing robes of many lawyers.
If you condemn me for helping people like Velma and my other 22 clients who testified at this hearing, whether you intend to or not, you will be an enabler.
The Law Society is a node. It sits at the intersection of the courts, of the advocacy professions, and the public with its unquenched thirst for justice. If you could part the iron curtain that occludes the “hoi polloi” from affordable justice even one tenth of an inch, that would be a remarkable contribution to the enhancement of public confidence in the judicial system, not to speak of real justice.
You have to decommission yourselves from the unspoken assignment of defending the ramparts of Fortress Law Society. Accessibility is the lifeblood of any judicial system. Do not condemn as immoral those who provide such access simply because a self-serving rule is an obstacle. You need to have contextual perspective. I am not advocating disregarding by-laws. When it happens, it is a weighty matter for me. You will recall my evidence—I do it minimally. But we live in the real world. I charged $2,000 to Mr. Gauthier. It was a $2,000 charge to do a complex notice of motion, to do an extensive affidavit, to do a factum seeking constitutional relief and to develop an argument that would change the law, to prepare books of authorities and to pay for Mr. Markin’s appearance in court. Until Mr. Gauthier came to me, he was devastated from lack of access to justice. I made it affordable. I made it real for him.
Moral Compunction Permits no Choice
I agreed to perform services for him, a vast amount of services inclusive of disbursements for $2,000. That was his own evidence. You would have charged ten times that amount, Ms. Blight, if you were in a generous mood on a sunny day. Nothing that I have ever charged for any of my clients has ever been anything even approaching a commercial fee.
My professional approach is to abide by the Law Society’s edict on unauthorized practice. I breach it only when moral compunction permits no choice. My conduct should be evaluated in the context of my approach to life and to the law. My decision to become a legal advocate and the role that I have played since 1974 as a legal advocate has been to represent those for whom the courtroom doors are barred. I am there to serve, not to benefit. To my clients, living paycheck to paycheck, the courthouse might as well be surrounded by a 10 foot fence made of barbed wire.
Before 1989, I was, in a sense, a public employee. My income was from Legal Aid. I took virtually only legal aid cases. I took cases few others would take.
Even though my impending retirement means that I will be gone—rest assured, I will not be entirely gone. My toe will still be in the water—I will continue to make legal services available for free or for a nominal payment to members of the public who lack funds.
Of course, my continued availability for assistance will include trenching the exclusive terrain of the Superior Court where paralegals are verboten. I will always be there for people to give them a juridical personality wherever they need it. I will always be there to make people feel that the judicial system can respond to their needs. I want to share what limited skills I have. I am public property. My life and the life of people who need justice, social justice, legal justice, are completely inseparable.
Until 2007, when paralegals were swallowed whole by the legal profession under the ironically named Access to Justice Act, the Law Society never charged me for breaching its restrictions on my scope of practice. You have heard evidence of the existence of a litany of unauthorized practice instances involving me going back to 1989 that were documented in depth by the Law Society in the records that I was finally given as part of its outrageously delayed disclosure obligations which the Law Society resisted to the end. The Law Society not once chose to prosecute me despite my public flouting of its restrictive rule for almost two decades. There are two reasons why it didn’t charge me. At least in some such potential prosecutions, I would have been able to have a hearing in the Provincial Offences Court under Section 50 of the Law Society Act. That meant that I would be able to defend myself before an independent body outside of the control of the administration of the Law Society. No longer would I automatically be crushed by its well-oiled machine. That is one of the reasons why I was not prosecuted. The more obvious reason was that the public would be outraged by the prosecution of someone competently providing affordable legal services to clients who would otherwise not be represented.
Am I Ungovernable?
My prosecution before an independent court would denude the Law Society’s pretence of protecting the public since my clients would testify on my behalf. They would be seen as the real targets and victims of any such prosecution. The evidence is there: I wasn’t in it for the money—one of the least significant values in my life. I was there to promote respect for their rights and the judicial system that would accommodate them by providing judicial access to people who cannot afford lawyers. From your high perch, you can look down at what I do as evidence of poor moral character. However, from my perspective from the bottom rung of the pit, looking up at you, I view my conduct as a moral obligation. I view it as a matter that I have no choice over because of the principles that I hold.
The principle of access to justice is not a quirky personal principle that I have arbitrarily selected to follow. A false picture has been painted of me as if I appropriated to myself the unfettered right to choose which rules I abide by. That is a nefarious misrepresentation that ignores the fact that the Law Society itself is bound by its own enacting statute to promote the very principle that it falsely claims I have arbitrarily selected to follow.
Am I ungovernable? True, sometimes I have to choose between a just principle and an unjust by‑law. So what does a person with a good conscience do? The statutory principle of the Law Society is to maintain and advance the cause of justice, to act to facilitate access to justice for the people of Ontario. What do you do when you are confronted with the burning needs of a client for access to law that will be extinguished because the by‑law doesn’t allow you to represent her or him? Which road should a moral person travel? Do you follow the principle or follow the by‑law?
Access to Law is a Commodity Sold to the Highest Bidder
You follow the by‑law if you adhere to the concept that legal access is a marketable commodity sold to the highest bidder. But if you harbour an obligation to help people, you follow the principle of facilitating access whatever the price you might have to pay personally for doing so, including being summoned before three venerable persons such as you whose job appears to be to detect fissures in my moral character with a very, very strong magnifying glass.
This moral obligation to assist others, however imperfectly, that I harbour in my soul overwhelms any instinct I have to follow a rule for its own sake. Access to justice is a higher moral value to me. A true moral character acts out of a categorical imperative to do what is right, not out of fear of what might happen if he doesn’t abide by the rules.
I act out of something inside of me rather than something that might be imposed on me from the outside. A true moral character has a social soul. What is moral is what benefits society. Although the suggestion has been made backhandedly by some who want to marginalize me that I am “ahead of my time,” I am not ahead of my time. It is the Law Society that is behind the time. My commitment to affordable justice is stronger than I am. It has taken control of my mind and soul—it makes me do whatever it wants or needs for it to be realized. It does so in the present tense. It does so in an imperative sentence.
Of course, such a perspective clashes frontally with a culture of an organization that holds a monopoly and nurtures astronomical legal fees that strangle judicial access to the majority. This puts me on the outside of the Law Society. I am an outlier. It’s a small price I have to pay for rejecting a culture of blind obedience, a culture of overarching conformity, a culture of loyalty to an exclusivist creed, to the pursuit of material self-interest while making a mockery of our judicial institutions which I am apparently too morally impure to be part of by your blinkered standards.
What Makes Me Tick
I try to understand, just as you do, what makes me tick. But I also ask myself: What makes the Law Society tick? The conclusion I come to is that the Law Society legitimizes its rules which it itself defines by circular logic. Its reasoning is autological. You make the rules and the rules are justified because you make them. If you should break them, by God, you will pay and we are the ones who will mercilessly extract payment!
Masked self-interest, not public interest, rules within the bubble within which the Law Society is ensconced, insulated from interaction with the outside world where social facts would puncture its pretenses. That is why dark secrecy infuses the Law Society at every stage, reinforced by immunity from freedom of information laws and an unfettered discretion exercised in hand-cupped whispers behind the thick oak-burled doors of Fortress Osgoode Hall. Their rules are there to protect the legal élite and help keep the lid on its misfeasances. That is why benchers are protected from publication of a Law Society discipline charge until the proceeding is over. That is the practice that is applied to a bencher who is charged by the discipline committee—no publicity, complete secrecy until the hearing is over and even after, if he is acquitted. Is that protecting the public interest?
I mention this only because the Law Society promotes itself as the Guardian Angel defending the public interest. I want to expose the falsity of that image. In fact, the Law Society only purports to be interested in protecting the public interest. Overblown allegations of incompetence or dishonesty by paralegals are manufactured by lawyers to eliminate their competitors in a tight legal service market by restricting their scope of practice where it overlaps with the lawyers’ exclusive and primary scope.
Regulation For Whom? For What Purpose?
Regulation in itself may be desirable. But by whom? And for what purpose? In the United States, over the last 75 years, numerous academic studies show that complaints against paralegals largely originate from lawyers, not from clients. Key academic studies indicate that regulation has made virtually no difference in the quality of the delivery of legal services for clients of paralegals.
We all know, also, that even with regulation, you are not protected from being taken advantage of as is the case with a multitude of licensed lawyers who clearly should not have been or remain licensed. Rules often have the unintended effect of making unscrupulous lawyers more efficient in hiding their activities rather than changing their moral spots.
Certainly, we must all be aware of the great irony of having a good character hearing in which the public interest has to be protected when the public itself—at least 22 clients—testified on my behalf. Overwhelmingly, it has been lawyers—six or seven of them—who have testified against my character, alleging unauthorized practice by me. Members of the public have testified in support of my having a good moral character. Doesn’t that require some kind of explanation? Isn’t that a conundrum?
Let me give you an example of what happens to unrepresented persons in court. You may remember the evidence of one lawyer who testified against me at the hearing. He attended at the Superior court for a status review, and my client, who was unsophisticated, was in the courtroom representing himself and the lawyer was representing the party my client was suing was also present.
In a discussion he had with the opposing lawyer, my client referred to me as his “lawyer”, and the lawyer on the other side said, “No. Mr. Kopyto is not a lawyer.” My client, a simple man who has always regarded me as a lawyer despite my repudiation of such an official designation, responded, “Oh, he is not a lawyer? Then I will dump him.” The opposing lawyer then mentioned my name out loud during the court proceedings when he made his submissions on the status of the case to the presiding judge. Everybody in the crowded courtroom laughed uproariously when he mentioned that my client had referred to me as a lawyer.
What was I doing for my client at the time of that status hearing? I was trying to get him a psychiatrist to be a witness who would testify that he was capable of driving a motor vehicle. He was suing another psychiatrist for negligently reporting him to the Ministry of Transport alleging that he should have his driver’s licence revoked since it was not safe to allow him to drive a motor vehicle. I was trying to get an expert opinion to use in court saying that the client was safe to drive.
In order to win the lawsuit, my client needed an opinion from a psychiatrist testifying as an expert witness to say that the psychiatrist who reported him to the Ministry of Transport and caused him to lose his job as an auto mechanic was negligent. My client went to the status hearing to get an adjournment so I could continue my efforts to find such a witness.
Someone Else’s Body Should be Swinging Next to Mine
So what happened? My client reacted to the opposing lawyer’s disparaging comments about me by dropping me as his adviser. He ended up defending himself as he could not afford a lawyer.
I filed the final court decision in my client’s case as exhibit number 25. He lost his case because he never called an expert psychiatrist to testify that the doctor he was suing had been negligent in reporting him as unfit to drive!
I mention this case to put the evidence of the lawyer who acted against my client and testified as a witness in this good character hearing before you against me in context. This lawyer’s testimony has been used to professionally hang me. But if my body is swinging from a high moral beam, there is somebody else’s body hanging right next to mine. My client’s body is also hanging from the judicial gallows. He did not have a chance to win his case unaided. Without me, he was thrown to the wolves or off that famous cliff in ancient Greece where the Spartans used to throw people who were weak or disabled—thousands of bodies broken on the rocks below.
My client was unemployed. He was on social services. He had no income. He ended up representing himself. Even though I breached the scope of practice restriction by assisting him against a lawyer‑represented client in a court that was off limits to me, I compelled the opposing side to deal with the case seriously by ensuring my client was acting in an informed manner. By eliminating me from the picture, what the client lost was meaningful legal assistance. What he lost was the ability to present evidence that was being gathered on his behalf that could have enabled him to win. As you can see from the final court decision, his loss was based on his failure to present the expert testimony I was in the process of obtaining for him. He lost access to justice because he was a poor man crushed by your rules and manipulated by the lawyer acting against him and testifying here against me.
You have to weigh what is more significant here: having a person exercise reasonable access to justice in an informed way, or protecting the financial interests of the lawyer whose communication with my client, if you can call it that, resulted in making a mockery of my client’s right to justice?
Probably, the wisest words in this hearing came from another fairly unsophisticated client, John Reiger, who testified before you, “I am better off with somebody who knows something about the law than nobody at all. Right?” That simple comment summarizes in a few words everything you need to know about what motivates me to break your precious self-serving by-law.