Posts Tagged ‘Kopyto’

Ontario Law Society Quandry: Does Disbarred or Suspended Attorney Have the “Good Character” to be a Paralegal?

Monday, November 28th, 2011

One aspect of the Ontario experiement in licensing paralegals that I posted about favorably here is the “good character assessment.” Commenting on an unusual case before a Law Society Appeal Panel, I noted,

The scary part is that there is nothing to prevent our own Nics from calling themselves paralegals here in the United States. We are hopeful that UPL laws will prevent them from operating independently, but depend on law firms to do the character assessment and background checks to keep Nic and his ilk out of the legal system. Unfortunately, this procedure all too often fails. Indeed, some paralegals are so un-reviewed and unsupervised that they are able to embezzle huge sums from the law firms themselves. One managed to grab $1.7 million before being caught!

Indeed, there is a concern that persons found unfit to be an attorney could become paralegals under our system, a concern I addressed in “If he smells bad there, he’ll smell bad here.” As noted in that post, it seemed that a paralegal licensing program that included a good character assessment would prevent corrupt attorneys from becoming paralegals after disbarment.

A recent article in the Law Times though makes it clear that not just any licensing regulations will do:

The Paralegal Society of Ontario says it’s “seriously concerned” about Law Society of Upper Canada regulations allowing disbarred and suspended lawyers to apply for paralegal licences, an issue that culminated in Mississauga, Ont., lawyer David Robert Conway’s successful appeal of his disbarment this month.

“As an organization, we’ve made it perfectly clear to the law society that we highly object to a lawyer applying to serve as a paralegal when they’ve been suspended or disbarred,” says Janet Wigle-Vence, treasurer of the paralegal society.

According to Wigle-Vence, while paralegals serve clients in a limited scope compared to lawyers, the regulator should hold both types of practitioners to a similar standard of character.

“If they can’t pass the test to serve as a lawyer, it doesn’t make sense that they would be allowed to serve as a paralegal,” she adds.

The problem lies in the particular way the regulations are written. They include “grandfather” and hearing provisions that do allow disbarred attorneys to have a hearing on a paralegal license application which could, in theory, find that they do not have the “good character” to be an attorney, but do have the “good character” necessary to be a paralegal!

The article implies, however, that this is more of a theorectical problem than a practical problem, noting through a statement by Harry Kopyto, himself a disbarred attorney, a subject of posts on this blog, and occasional communicator with this blog, few attorneys have been successful in taking this route back into legal practice precisely because of the good character requirement. Nonetheless, it seems odd that this would even be an option. The regulations should make it clear that disbarment or suspension as an attorney is itself sufficient indication that the applicant lacks the good character required to be a licensed paralegal.

Kopyto Communication

Tuesday, June 8th, 2010

I’ve been traveling and have had little internet access so posting has been, and will be, sparse for awhile. Among the many emails accumulated in my Inbox is on from Harry Kopyto. You may recall from previous posts, Mr. Kopyto is challenging the regulation of paralegals in Ontario, primarily because the regulation is by the Law Society, which is comprised primarily of lawyers and also regulates attorneys (although several paralegals were recently elected to the Law Society’s governing board.) Mr. Kopyto does not view the licensing and regulation of paralegals in Ontario as a step forward for the paralegal profession, but an attempt by attorneys to squelch competition. This effort, he contends, has the effect of diminishing access to justice for those without significant financial resources.

The article Mr. Kopyto sent me is too long to post here, but some excerpts follow. Please keep in mind that I have not vetted the statements for accuracy, Mr. Kopyto’s statements are likely to favor a particular position, and I am not endorsing that position by printing the excerpts.

The main rationale that the LSUC has given for its takeover of paralegals is the fact that “the public interest” requires it to ensure that incompetent paralegals are not foisted on the public market.  What the LSUC has done (and what is not apparent to the public) is that, as a result of bylaws passed by it immediately after the takeover ― the Law Society has basically eliminated paralegals as a profession able to provide a wide variety of services in competition with lawyers.

Prior to the enactment of the Access to Justice Act and the amendments to the Law Society Act, paralegals provided a wide range of services to the public.  They did so effectively and, according to former High Court Judge Peter Cory, at “significantly lower fees” then charged by lawyers.  In fact, within about 30 years, the number of paralegals working in Ontario flourished from a few hundred to an estimated 4,000. Many paralegals prepared wills, prepared incorporations, prepared leases, acted in undefended divorces, did simple real estate transactions and engaged in Family Court representation — subject to prior approval.   Some of their work was in “gray” areas, but unauthorized practice prosecutions were few and successful ones were even fewer.

What do the bylaws say?  Specifically, they restrict paralegals to provide legal advice only with respect to Small Claims Court, provincial offences, 6 months maximum criminal court matters and federal and provincial tribunals.  That’s it.  No more.  Everything else is verboten.  The bylaws thus further entrench lawyers’ fixed–price justice monopoly. An example?  While permitting paralegals to negotiate motor vehicle accident claims, the bylaws ban them from cases involving “catastrophic injuries” where large fees are to be earned.

No rationale is given for preserving this lucrative turf for lawyers alone.

Lawyers’ greed trumps affordable justice when lawyers control the game and hold all the aces.   The LSUC has tried to masquerade its dictatorial control over their twenty-first century serfs. In reality, paralegals have been disenfranchised inasmuch as they are  “members” of the LSUC who can’t vote for benchers.    The much-touted elections of paralegals to their LSUC Paralegal Standing Committee is a joke: the Committee is only administrative.  Similarly, the LSUC’s appointment of two paralegals to Convocation where they are outnumbered by 83 to 2 is a coup d’oeil, an illusion of democracy.

The issue is not yes or no to regulation.  Of course, regulation is in the public interest.  But regulation by whom?  Regulation for what purpose?  Regulation in whose interest?  And why regulation by a competing profession?

Kopyto Canadian Challenge Continues to Churn

Thursday, April 15th, 2010

My post regarding a legal challenge to paralegal regulation by the Law Society in Ontario received a pingback from none other than harrykopyto.ca. Harry is challenging the legality of that regulation in the context of the regulators denial of his request to be licensed based on his “lack of good character.”

In my previous post I saw the issue in terms of the choices that have to be made in balancing the increased access to justice that can be provided by paralegals and the need to provide protection to the same public that needs that access to justice. The challenge itself posits the thought that lawyers and paralegals in Ontario are competitors and this attempt to regulate paralegals is an attempt by the Law Society to prevent that compeition. Unfortunately, it does not seem that this challenge will lead to any real discussion of those issues in the near future, if at all.

Here’s on harrykopyto.ca describes the issues involved in this proceeding:

You know the background. Toronto paralegal Harry Kopyto is on trial facing professional capital punishment. The charge? Lacking “good character” to work as a paralegal. The real reason for the charge? Speaking truth to power for 35 years in Ontario courtrooms.

The proceeding is presently mired in what might be characterized as a discovery dispute. The hearing on that issue was scheduled for April 6 and 7, but has been postponed.

I will continue to follow this proceeding for whatever insight it can give to the regulation/licensing issue, but it does look as though real insight will most likely come from another source.

Competition in Canada

Wednesday, February 24th, 2010

While others are focused on Vancouver, I continue to follow events in Ontario. There Harry Kopyto is challenging the system that regulates paralegals. I’ve mentioned Harry before and the regulatory system has been the subject of several posts here.

I’m not really very interested in Harry himself. Rather it is the way this story highlights the various factors that must be considered in paralegal regulation. On the one hand we have this:

The provincial government vested the law society with the responsibility to govern paralegals over concerns that the public was exposed to the risk of harm at the hands of unscrupulous or incompetent practitioners.

“We heard lots of different horror stories,” says Steven Rosenhek, chairman of the Ontario Bar Association’s paralegal task force, adding that complaints against paralegals “came up fairly frequently and sometimes with disastrous results.”

The prevailing lack of any regulatory structure meant paralegals were free to operate without any disciplinary mechanism or minimum standards of education.

On the other, this:

In barring paralegals from family law, the current rules have made a dysfunctional system even worse, Kopyto charges.

Particularly vulnerable, he says, are women in divorce and custody litigation who don’t qualify for legal aid but can’t afford a lawyer.
“Now, these women are streaming into court without any representation and they’re being eaten alive by the [high-priced lawyers] of the world,” Kopyto says.

“It’s a zoo down there. People who have clearly meritorious cases are losing them.”

Ontario decided in favor of public protection over access to justice:

“There’s always tension between access to justice and public protection,” he [the chairman of the Ontario Bar Association’s paralegal task force] says. “We said and we will continue to say the paramount concern is public protection.”

These two factors are also at work in the debate over paralegal regulation in the United States. There is also concern here, as in Ontario, over disbarred attorneys practicing as paralegals.

 However, we must also keep in mind that Ontario’s program was developed in different context for the role of the paralegal, many of whom had practices independent of attorneys unlike here where paralegals are required to have attorney supervision. In fact, paralegals were (and are) often viewed as competitors to attorneys.  And therein may lie the virtue of Harry’s challenge. He states he is not opposed to paralegal regulation, but objects to the paralegal profession being regulated by the Law Society, i.e., by the lawyer profession with which it competes.

This is a very different perspective than that considered in a previous post here, which celebrated the paralegal profession being brought into the Law Society as a recognition of paralegals as  legal professionals. There is, apparently some merit to that perspective.  Judi Simms, president of the Paralegal Society of Canada, states on the one hand, “The only thing it’s accomplished so far is it’s restricted our capability to practise,” but also says “For many paralegals, particularly those who had established practices in small claims, landlord and tenant law, and traffic matters, regulation has legitimized their functions and advanced them professionally.” According to the most recent report in the Law Times News, “Simms, in fact, praises the LSUC for its “spectacular job” in bringing paralegals into the fold.”

I suspect that even in the context of competition, there are more similarities between the paralegal/lawyer professions in Ottawa and the United States that might immediately meet the eye. See for example the discussion here and on the Paralegal Today discussion forum, on Combating the “Hire an Out-of-work Lawyer as a Paralegal” Trend. “Independent” paralegals also claim that fear of competition and a desire for a monopoly is behind the efforts of bar associations to shut down businessess such as Efrem Martin’s.

So this competition in Canada should remain of interest to United States paralegals as more than just a spectator sport. I hope in the next few weeks to take a closer look at California’s regulatory system both in terms of its mechanisms and its implementations. Anyone who has a fact based opinion on either is invited to contact me at theempoweredparalegal@live.com.