A well-known legal activist is using his good character hearing to challenge the Law Society of Upper Canada’s jurisdiction to regulate paralegals, a fight he intends to take all the way to Ottawa if necessary.
‘They bit off more than they can chew and they’re going to choke on it,” says Harry Kopyto.
Harry Kopyto, a legal provocateur who has acted as a paralegal since the law society disbarred him 20 years ago, now finds himself having to prove his good character to the regulator in order to save his practice.
“I’m afraid,” he says. “I feel extremely vulnerable. I have powerful forces arranged against me. As much as I am on a mission, I have a sense that they are on a mission as well.”
His mission, however, goes well beyond redeeming himself against a litany of law society allegations.
Kopyto says that in assuming the regulation of the paralegal profession, the LSUC has violated federal competition rules, assumed a restrictive monopoly over legal services in Ontario, and effectively reduced access to justice.
“It’s an honour to challenge this horrible, unlawful, and abysmal takeover of paralegals,” he maintains.
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.
The new regime implemented certain restrictions on the areas of practice open to paralegals.
They would no longer be able to give advice or fill out paperwork for simple estate, wills or incorporation matters and, most controversially, would be prohibited from family courts.
“The only thing it’s accomplished so far is it’s restricted our capability to practise,” says Judi Simms, president of the Paralegal Society of Canada.
“Why is it that we can’t perform a task that a legal secretary could perform?”
Simms says that for decades, paralegals filled a void in the system by ably performing many straightforward legal tasks.
“There were some paralegals who blew it, but, hey, there’s a lot of lawyers that blew it, too,” she 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.
Simms, in fact, praises the LSUC for its “spectacular job” in bringing paralegals into the fold.
Since the law society began issuing licences in May 2008, more than 2,000 paralegals have received authorization to practise.
However, Simms says at least an equal number have fallen by the wayside.
“Some have had to stop practising, and others have had a hard time making a living,” she says.
“I think they actually really did step on our toes.”
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.”
Both the task force and the law society, however, said family law must be the domain of lawyers alone.
“We were very much in favour of that being an area off limits to paralegals,” Rosenhek says. “We were very much of the view that this is an area fraught with difficulties, is complex, and requires significant legal skill and knowledge.”
Rosenhek acknowledges critics’ claims that the move has effectively restricted access to justice.
“There’s always tension between access to justice and public protection,” he says. “We said and we will continue to say the paramount concern is public protection.”
Rosenhek points out as well that concern over disbarred lawyers practising as paralegals was part of the impetus for the push for regulation.
Law society officials declined to comment on Kopyto’s case. The good character hearing follows his disbarment in 1989 for allegedly overbilling the province’s legal aid program by more than $150,000.
Kopyto has always maintained the discrepancy was a result of his own accounting deficiencies and that his total billings to legal aid were fair and accurate.
“My accounts had inaccuracies, but the work was done,” he says. “I earned every cent.”
His current good character hearing will allow him to finally clear the air over the allegations, he says.
At an ongoing hearing last week, he was also fighting the law society for disclosure of all documents related to the regulation of the profession, arguing he hasn’t had access to the information he needs to contest a multitude of allegations.
“Almost every breath that I’ve taken over the last 20 years is there. But they haven’t given me what I need to defend myself.”
Kopyto also maintains the onus is on the law society to prove he isn’t fit to practise as a paralegal rather than the other way around.
Two decades of legal work have given him “vested rights,” he says.
“I’m saying, ‘You have to prove my bad character. I don’t have to prove my good character.’”
In addition, Kopyto claims the regulation of paralegals by lawyers is in violation of federal competition laws.
On that point, Simms agrees.
She points to a Competition Bureau report that challenges the notion of one profession having control over a competitor.
“To the extent that paralegals need to be regulated, the proper avenue for this is not through the law societies given the obvious conflict of interest that arises from having one competitor regulate another. Alternative means of regulatory oversight should be explored,” the report said.
For his part, Kopyto welcomes paralegal regulation but not by the law society, which he claims has adverse legal interests and has created an internationally unprecedented monopoly over legal services.
“They bit off more than they can chew and they’re going to choke on it,” he says.
