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Disbarred lawyer challenges LSUC

|Written By Tim Shufelt

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.

  • harry is a hero

    MS
    There are not so many out there who will fund one's case until he or she wins it.....and get paid after one and some time after many years. Tell me how many lawyers will do this for you? I know it because I saw it.
  • joe boy

    Harry Potterski
    Paralegal Regulation yes. By the LSUC no. On the other hand, why not allow the paralegals to regulate the lawyers?
  • Proud Paralegal student
    I agree that the LSUC regulating paralegals is a bad idea no matter what way you look at it lawyers and paralegals are competitors. Granted though the regulation of the paralegal profession is a neccassry step and one that would be likely applauded by the many practicing paralegals because it gives not only the public but the paralegal protection but to have the restrictions placed on areas of practice and to be regualted by our competitor is outright wrong, as I have heard one person say, its like mcdonalds regulating burger king.
    Yes there are bad paralegals out there but there are some damn bad lawyers out there too!
    Ihaven't met many paralegals that even want into family law its messy but hte ones that do should have some access to perform services. If I can rep myself in family court I should be allowed to choose to have a paralegal stand in my place.
    I have been in family court my husband and I hired some lawyer that charged $150.00 an hour. I completed all the paper work he or his PARALEGAL just cut and pasted our emails to him, he didn't do what we asked him to do when filing our application, which caused a huge problem we were tryingto avoid; and on three different occassions hung us out to dry IN COURT finally we fired him and I handled the rest of the case myself and that was with NO legal training.
    we won by the way
  • A person
    Paralegals should be regulated bu the LSUC family law ban is STUPID!!
    IT adds to the stress and cost of a divorce without a paralegal. Lawyers are dishonest so who is honest.
  • Disbarred lawyer challenges LSUC

    advocate
    There are instances where people worked day-in and day-out for years drafting and preparing and filing legal documents under the supervision of a lawyer or in the justice administration system, but when they became independent paralegals they became persona-nongrata and viewed as unwelcomed competitors to be eradicated by any(legal)means by the legal profession. The chosen strategy and tactic was to gain complete control over the paralegal profession. One may be persuaded to believe that the public's interest in this instance, may have easily been served with a strict code of ethics and mandatory E & O insurance.
  • Support for Harry

    Anonymous
    Harry has been in court on several occassions and all the people in the gallery were people that were helped by him, I don't think that most lawyers at a disciplenary hearing can fill a telephone booth when they are in front of such a panel.
    I think that speaks volumes about what he has provided to those in need of affordable legal representation if anyone would care to look at his legal battles and the peolple he has helped.
  • Guest
    Kopyto claims that he did not defraud Legal Aid but merely made a $150,000 accounting error.

    ..... hmmmm? ...... and he thinks he's competent to represent women who are being financially taken advantage of in family law matters. Why????
  • Gord
    Anonymous's reasoning is simple and clear. It also is very simplistic in that there is not an a priori logical connection between Kopyto's long-ago handling of his accounts and his actual record in representing women. Does the record show that Kopyto has incompetently handled women's cases in family law? Seems that there are quite a few of his clients who fit into that category (and others) who are actively supporting him. For you see, they could afford him, he represented them well and tenaciously and offered them support that they otherwise could not have afforded.
  • is the LSUC an even-handed regulator

    brian
    In the same way anti-competetive mls/realty practices hurt consumers looking to buy a house - the LSUC's anti-competive practices hurt consumers looking for an affordable legal representative.

    As for the statement: "There were some paralegals who blew it, but, hey, there’s a lot of lawyers that blew it, too,” she says." - why not check to see if the LSUC is an even-handed regulator.

    For example, the press is replete with coverage of an unqualified psychologist who proffered unchecked, unchallenged "expert" testimony in the child custody, family law context. The LSUC could easily check to see how many paralegals versus how many lawyers allowed their clients to be skewered by an unqualified opposing expert simply because they failed to make a toll-free call to the CPO to confirm "expertise". Is the LSUC ignoring this issue completely or is it being even-handed in terms of those who failed in their duty to check (and challenge when appropriate to do so) the qualifications of opposing experts? Apparently Carter goes to court in March for holding himself out as a psychologist.
  • One small difference...

    Stephen Shanfield
    “There were some paralegals who blew it, but, hey, there’s a lot of lawyers that blew it, too,” she says.

    That may be so, but when it came time to compensate an aggrieved member of the public, E&O insurance, or in the case of fraud, the Law Society's Compensation Fund was there to cover the loss. The same was generally not the case for paralegals.
  • Too much budget, not enough work

    witch hunt
    Law Societies are like any other bureaucracy... they need to grow. They can grow by expanding their jurisdiction, or by finding new ways to exercise their existing jurisdiction.

    And, they tend to be populated (staff level, at least) with people who have little or no experience in the law. Fresh minted legal (and social science) degrees qualify these people for nothing, but vested with authority, they do exercise it.

    Nobody benefits from overzealous regulation. Left to their own devices, law societies can and will take justice out of the reach of the poor, while they make the practice of law (by anyone) less rewarding and more difficult, every day.

    Soon, there will only be lawyers, and only in big firms. The law societies want it that way.

    ZK
  • balancing interests

    Jeffrey Gauze
    I am sympathetic to the concern that some people who cannot afford a lawyer will be denied access to justice. But I have seen cases where people would have been better off, going it alone, than sticking with the poor level of service - including fatal legal errors - they were getting from their paralegal.

    Sure, lawyers mess up, from time to time; but they have always been answerable for their mistakes and ethical lapses. Furthermore, the more infamous members of this group have stood as a warning and example for the rest of us.

    Now paralegals are being held accountable, too. If a few paralegals cannot make a go of it, in a more regulated environment, then there is probably a good reason for that, and the public is better off for the disappearance of their inadequate, incompetent or unscrupulous services.
  • Conflict of Interest

    Don Desaulniers
    I agree with that portion of the article which points out what I have always felt was a blatant conflict of interest between what is in a lawyer's interest (barring paralegals from anything lucrative) versus what is in a paralegal's interest (being allowed to handle as many types of matters as possible). There is in my mind an expectation that the Law Society will decide on the side of lawyers for the most part. Even though I am a retired lawyer, I feel sorry for paralegals.
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