Lawyers Gone Bad
Page 29
22. Finney was still busy before the discipline committee of the Quebec bar, and before the professions tribunal, pursuing unsuccessfully the lawyers who had represented the bar before the Supreme Court of Canada. In McCullock Finney c. Doray, 2006 QCTP 16, the professions tribunal rejected Finney’s objections to certain procedures being followed in her misconduct complaint against Raymond Doray. The facts were similar, and the outcomes the same, in McCullock Finney c. Gauthier, 2006 QCTP 54, and McCullock Finney c. Houle, 2006 QCTP 55.
23. Christina Finney, telephone interview by Philip Slayton, 14 December 2005.
Fifteen: The Last Hope
1. “Famous lawyer ousted,” The Province, 9 November 1989, 21.
2. Jack Lakey, “Toronto lawyer draws cheers from Bejing demonstrators,” Toronto Star, 31 May 1989, A19.
3. Harry Kopyto, interview by Philip Slayton, Toronto, 27 September 2005. Several of the Kopyto quotations in this chapter come from this interview.
4. In March 1987, Antonio Borges, a Canadian citizen, came into Codina’s Toronto office with Marguerida, his sister. Marguerida was in Canada on a tourist visa, but she wanted to live in Canada. There were six Borges siblings, all, except Antonio, living in Portugal, and all, except Marguerida, married. Antonio later said that he told Codina about his brothers and sisters, but she “told me whenever I went to the immigration to tell them that I didn’t have anybody else in my family.” In Codina’s opinion, that would make Marguerida eligible for Canadian residency under an immigration program designed to favour the “last remaining single family member.”
5. Rick Haliechuk, “Kopyto’s luxury home for sale, Can’t afford it, controversial lawyer admits,” Toronto Star, 28 August 1989, A2.
6. Harry Kopyto separated from his wife, Sabina Kopyto, also known as Shirley Resnick or Reznick, in 1984, after he met Angie. They were divorced in 1990. In 1988, at Harry’s urging, Sabina mortgaged what had been the family home, where she still lived, for $230,000. Kopyto and Codina used the proceeds to purchase the house at 211 Dunvegan Road. In 1993, Sabina’s litigation guardian attempted unsuccessfully to secure an interim injunction stopping the mortgagee from exercising a power of sale over her home. Evidence was given that Sabina suffered from schizophrenia. The judge said that “Mrs. Kopyto seemed to be a tool for her husband; what he wanted her to do, she did.” But he did not grant the injunction, saying that “Mrs. Kopyto knew exactly what she was doing when she signed the mortgage.” See Kopyto (Litigation guardian of) v. Royal Bank of Canada, [1993] O.J. No. 2168.
Kopyto never paid the child support required by the 1990 divorce judgment. In 1996, the Ontario Family Support Plan brought an action to enforce the child support order—Ontario (Family Support Plan, Director) v. Kopyto, [1996] O.J. No. 2095. Although Kopyto was technically in default, the judge found that he was meeting all his children’s financial needs, and refused to make an order. The judge noted:
The payor’s evidence was that he has an association or relationship with another person, Ms. Codina, who seems to have taken over the role of his benefactor. Mr. Kopyto has made it clear repeatedly in his testimony that he has access to almost unlimited funds from her, sometimes without even the asking, not only to meet his own expenses, but to meet any and all the expenses of his children. This arrangement has been in effect for the last several years. Mr. Kopyto has stated in his evidence that Ms. Codina has voluntarily taken on the responsibility of meeting all his expenses and those of his children.
7. R. v. Codina, 1995 CanLII 572.
8. The judge failed to instruct the jury on whether the existence of married siblings in Portugal was a material fact for immigration officials. See note 4.
9. R. v. Codina, 1999 CanLII 2818.
10. R. v. Codina, [1997] O.J. No. 6429.
11. Law Society of Upper Canada v. Codina, [2002] L.S.D.D. No. 84. Codina had a long history of trouble with the law society. When she was arrested in 1989 on immigration charges, the law society was already looking into allegations that she counselled Hong Kong clients to circumvent Canadian immigration hearings. Eventually this complaint was withdrawn. After her initial conviction for immigration fraud, the law society brought charges of conduct unbecoming a solicitor. This complaint was withdrawn when the Court of Appeal quashed the immigration fraud conviction. Codina sought to have Kopyto (as agent—he was now disbarred) represent her in disciplinary proceedings arising out of her immigration fraud conviction. A law society panel refused, saying that “the tribunal could not rely upon Mr. Kopyto’s integrity, honesty and forthrightness, and … therefore he is not competent properly to represent or to advise Ms. Codina before it.” An application to the Divisional Court for judicial review of this decision was dismissed—Codina v. Law Society of Upper Canada, [1996] O.J. No. 3348.
In May 1989, Harry Kopyto defended Codina against law society charges that she had counselled clients in Hong Kong on how to avoid Canadian immigration law. Kopyto argued that the law society was harassing Codina because of her association with him. Unwittingly, the lawyer for the law society substantiated his argument. In a May 17, 1989, story, Rick Haliechuk of the Toronto Star described the disciplinary proceedings:
Veteran Toronto lawyer Harry Kopyto created a poisoned atmosphere that likely led a younger solicitor into discipline trouble, a law society lawyer testified yesterday.
A discipline charge against Angie Codina probably resulted from her professional and personal ties to Kopyto, Reg Watson told a Law Society of Upper Canada discipline panel.…
“You poisoned the atmosphere,” Watson charged, noting that Codina and Kopyto share a Bay St. office, and have a personal relationship. “There was a close link between you professionally and personally, and that atmosphere was dishonest.” …
Watson replied quickly when Kopyto challenged the assertion that he and Codina had a personal relationship.
“I also saw you together in a nightclub downtown,” Watson said. “In fact, when I was on the dance floor, you came over and spoke to me.”
Watson also said that during a meeting he held with the two lawyers, Kopyto repeatedly referred to Codina as “dear.” Watson said that was unprofessional.
Rick Haliechuk, “Kopyto ‘poisoned’ lawyer’s behaviour law society told,” Toronto Star, 17 May 1989, A23.
12. For a full description of Codina’s rejection of the charges against her, see David Gambrill, “Angie Inside,” Canadian Lawyer, January 2001.
13. Angie Codina v. The People of the State of New York, 297 A.D. 2d 539 (2002).
14. Harry Kopyto and Angie Codina, “Hopes for human rights fade behind prison walls,” The Globe and Mail, 10 September 1985, 7.
15. Gambrill, in Canadian Lawyer.
16. Regina v. Kopyto, 32 O.R. (2d) 585.
17. Vianney Carriere, “Lawyer takes Establishment as his windmill,” The Globe and Mail, 25 March 1982, 1.
18. Bill Gladstone, “Life’s work was ‘labour of love,’” The Globe and Mail, 18 March 2002, R7.
19. An account of what happened, from Dowson’s point of view, can be found in Ross Dowson v. RCMP (Forward Publications, 1980). In a foreword, well-known civil rights lawyer Clayton Ruby described the case as “a modern attempt at the suppression of freedom of thought.”
20. Kirk Makin, “Ex-RCMP officers only doing job, Ontario judge decides,” The Globe and Mail, 18 December 1985, A17.
21. Kirk Makin, “Thorn in side of legal system cited for contempt of court,” The Globe and Mail, 10 February 1986, A11.
22. Kirk Makin, “Lawyer’s case draws support,” The Globe and Mail, 8 April 1985, A15.
23. Drew Fagan, “Contempt case puts courts on trial,” The Globe and Mail, 23 September 1986, A16.
24. “Mr. Kopyto’s offence,” The Globe and Mail, 7 November 1986, A6.
25. R. v. Kopyto, [1987] O.J. No. 1052.
26. The law society had twice before disciplined Kopyto. In 1973, he was forced to retake his bar admission course after he was found cheating on exams.
In 1984, he was reprimanded over the Chanukah Caper.
27. Jack Nagler, “Maverick lawyer does sudden switch, admits he overbilled Ontario Legal Aid,” The Globe and Mail, 25 July 1989, 1. The law society now dropped the “Krazy Glue” charges as redundant (Kopyto later commented to Toronto Star reporter Rick Haliechuck, “They did an Al Capone on me.… They got him for tax evasion, but they wanted him for something else.”).
28. Frances Kelly, “60 backers pledge ‘love and support’ for maverick lawyer, Toronto Star, 18 September 1989, A11.
29. One bencher, Thomas Carey, dissented and gave extensive reasons for his dissent. The reasons in part were as follows:
Although estimating, the solicitor clearly believed in the essential truth of his accounts.… There was not one piece of evidence called by the Society’s counsel to repudiate the Solicitor or to suggest that he acted dishonestly for a dishonest purpose. The Statement of Facts discloses no such motive.… The uncontradicted evidence is that the Solicitor worked exceedingly long hours almost continually, that he took work on vacation, that he was constantly on the phone (sometimes carrying on more than one conversation at once). Having heard the Solicitor give evidence I can accept that his phone conversations could be quite lengthy. In concluding that the Solicitor must be disbarred the Discipline Committee made numerous derogatory comments about the Solicitor calling him “histrionic, bombastic”, “patently dishonest”. The Committee suggested that the Solicitor wanted “to tear down and smash” the legal process.… [These remarks] illustrate a level of antagonism towards the Solicitor that was inconsistent with an objective detachment.
30. Kirk Makin, “Disbarred for false billings, Kopyto promises fight,” The Globe and Mail, 9 November 1989, 1.
31. Kirk Makin, “Kopyto victimized public, law society says,” The Globe and Mail, 14 November 1989, A10.
32. An appeal from the disbarment was dismissed by the Divisional Court—Kopyto v. Law Society of Upper Canada, [1993] O.J. No. 2550.
33. Scott Stinson, “Pluto’s owner wins him back in court,” National Post, 22 April 2005, A3.
34. See Natalie Alcoba, “Boy sues hockey body after coach and dad fight,” National Post, 20 June 2005, A15.
35. But time may finally be running out for Harry. On May 1, 2007, the Access to Justice Act came into force in Ontario, giving the law society the power to license and regulate paralegals. The act says that only someone of good character may practise as a paralegal. It seems unlikely, at least in the eyes of the Law Society of Upper Canada, that Harry Kopyto (and other disbarred lawyers) will qualify.
Sixteen: The Search for Justice
1. See Philip Slayton, “Access to justice? Forget it!” Canadian Lawyer, January 2005.
2. See Statistics Canada, “Average income after tax by economic family types (1999 to 2003),” www40.statcan.ca/l01/cst01/famil21a.htm (accessed 31 August 2006).
3. Every province has a system of legal aid that, in limited circumstances, makes lawyers available to the indigent. As well, some attempts have recently been made in Canada to promote pro bono (free) legal representation of the poor and disadvantaged; witness, for example, the creation in 2002 of Pro Bono Law Ontario, a professional organization that doesn’t provide free legal services itself, but supports “volunteerism in the legal sector” (a similar organization exists in British Columbia). Most commentators agree, however, that, for the moment at least, very few pro bono legal services are provided in Canada.
By contrast, the United States has a strong pro bono tradition. Rule 6.1 of the American Bar Association Model Rules states that “every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.” The American Lawyer newspaper reports that in 2002 the two hundred largest firms in the United States reported just over three million pro bono hours.
4. A number of U.S. lawyers have won the Horatio Alger Award, given by the Horatio Alger Association of Distinguished Americans to persons who have risen to prominence despite humble beginnings.
5. See Paul Seabright, The Company of Strangers: A Natural History of Economic Life (Princeton: Princeton University Press, 2004). Seabright writes that “most kinds of professional training, whether apprenticeship as a mechanic or studying for the bar or attending an off-site course as a chef, involve learning not just how to accomplish particular tasks but how to project yourself as a certain kind of person” (91). This is what Seabright means by “learning the narrative.”
6. A famous 1973 New Yorker cartoon has a lawyer saying to his client, “You have a pretty good case, Mr. Pitkin. How much justice can you afford?”
7. Ward Just, Forgetfulness (New York: Houghton Mifflin, 2006).
8. Michael Gorra, “Imprisoned by History,” The New York Times Book Review, 24 September 2006, 13.
9. At large New York firms, the annual salary of a first-year lawyer is about $150,000. See Ellen Rosen, “For New Lawyers, the Going Rate Has Gone Up,” The New York Times, 1 September 2006, www.nytimes.com/2006/09/01/business/01legal.html?ei=5087%0A&en=3e084a47 (accessed 3 September 2006). In downtown Toronto the starting salary is about $100,000.
10. See Chapter 6.
11. Martin E.P. Seligman, Authentic Happiness (New York: Free Press, 2002), 181.
12. See Chapter 1.
13. Contingency fee arrangements tie a lawyer’s fee to the outcome of a case. If the client wins the case, the client pays his or her lawyer a percentage or other agreed-on portion of the settlement. If a client loses, the client doesn’t pay—the lawyer accepts the risk of not being paid when taking a case on a contingent basis. (See www.lsuc.on.ca/media/newconductoct3102 pdf [accessed 30 December 2006]). A class action is a lawsuit brought by one or more plaintiffs on behalf of a large group of others who have a common interest; typically, class actions are fought on a contingency fee basis.
14. “Law Society approves new conduct rule for contingency fees,” Law Society of Upper Canada press release, 31 October 2002.
15. McIntyre (Estate) v. Ontario (Attorney General), 2002 CanLII 45046 (ON C. A.).
16. See “Ontario government improves access to justice for Ontarians,” 1 October 2004 news release of the Ontario Ministry of the Attorney General.
17. The amendments require all contingency fee agreements to be made in writing; prohibit contingency fees in criminal, quasi-criminal, and family law matters; prohibit a lawyer from getting paid more than the client recovers; and set out specific protections for minors and incapable adults.
18. See, for example, the story of Martin Wirick in Chapter 12.
19. One might think that this is what happened to Harry Kopyto. See Chapter 15.
20. The Future of Legal Services: Putting Consumers First, presented to Parliament by the Secretary of State for Constitutional Affairs and Lord Chancellor, October 2005 (Cmd. 6679). See Chapter 1.
Sources and Acknowledgments
1. Donaldson and I were law partners for several years; I knew him fairly well when he resigned in disgrace from our law firm in 1991. Strother and I worked closely on several large files in the late nineties (representing different clients). I met with Dan Cooper twice, after which he no longer returned messages. I met Richard Shead only once, and he then decided not to cooperate further.
2. Pilzmaker was a student of mine at McGill University’s law faculty in the seventies.
3. Professor Hofman drew my attention to the words celebrating Saint Ivo (1253–1303), the patron saint of lawyers, in a stained-glass window in the cathedral of Tréguier in Brittany:
Sanctus Ivo erat Brito,
Advocatus, et non latro
Res miranda populo.
Professor Hofman, who is a Latin scholar, among other things, offered this translation:
Saint Ivo was a Breton,
A lawyer, and not a thief
A thing of amazement to the people.
INDEX
“aberrati
on” explanation, 64, 171
Aboriginal peoples, 157, 175, 176, 177, 178, 180–81, 182–83, 185–86, 187, 192–95
accountants, 13, 18, 108, 111, 112–14, 131
Ackerman, Jeremy, 206
Adams, Paul, 136–37, 138
Advocates’ Society, 150
Affordable Paralegal Services, 137
Alberta Court of Appeal, 137
Alberta Law Society, 136–37
alcoholism, 101, 152, 154, 170–71, 172
American Mania (Whybrow), 52
American Mercury magazine, 258
Anderson, David, 120
Anonymous Lawyer (Blachman), 29
anti-money-laundering legislation, 104–10
antisocial personality disorder, 7 (See also psychopaths)
anti-terrorist financing legislation, 105
Armstrong, Patrick, 72–73, 77–78, 81
Arthur Anderson (accounting firm), 17, 25
Asper, Izzy, 216, 230
Atkinson, Jim, 58
attention deficit hyperactivity disorder (ADHD), 199, 209–11
attorney–client privilege. See solicitor–client privilege
Authentic Happiness (Seligman), 9
Badr, Samir, 277–79, 280, 282, 285
Baines, David, 96, 132, 244, 326
Baker, Geoff, 282
Ballantyne, Cornelius, 180
Ballantyne, Peter, 194
Bank of England, 19
Bank of Nova Scotia, 228
bankruptcy, 13, 17, 57, 92, 93–94, 185, 245
Barber, John, 101–2
B.C. Court of Appeal, 125, 126–31, 132
B.C. Supreme Court, 121
Beacon Group of Companies, 120
Bear, Arthur, 194
Bekolay, Terry, 325
Belhassen, Eric, 277–78, 279–84, 288
Belli, Melvin, 260
Belmore, Tanya, 166, 169–70