The Law Society of Upper Canada (LSUC) is dealing with a highly contentious issue – the future of articling in Ontario. After consulting with stakeholders and reading submissions from across the province, Laurie Pawlitza, the former LSUC Treasurer described the feedback as "disparate" in the 2012 Canadian Bar Association (CBA) National Student edition.
The Articling Task Force released their Final Report this week, Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario. A preliminary cost assessment of the minority view's preliminary cost is also available. But what is the Law Society to do, with such polarized views on the subject?
Public engagement theory has steadily moved towards two-way engagement over the past few decades. The concept of deliberative democracy has emerged as a technique to both build consensus and help engage minority views, and involve these views in decisions. Gene Rowe and Lynn Frewer distinguish public participation from public communication and public consultation by describing it as follows:
In public participation, information is exchanged between members of the public and the sponsors. That is, there is some degree of dialogue in the process that takes place (usually in a group setting), which may involve representatives of both parties in different proportions (depending on the mechanism concerned) or, indeed, only representatives of the public who receive additional information from the sponsors prior to responding. Rather than simple, raw opinions being conveyed to the sponsors, the act of dialogue and negotiation serves to transform opinions in the members of both parties (sponsors and public participants).
But Rowe and Frewer note there are over 100 different mechanisms to achieve public participation, the effectiveness of which is dependent on the intent of those who sponsor, organize or participate in them. The competence and efficiency of a public participation mechanism can be gauged as follows:
Public participation: maximizing the relevant information from the maximum number of all relevant sources and transferring it (with minimal information loss) to the other parties, with the efficient processing of that information by the receivers (the sponsors and participants) and the combining of it into an accurate composite.
For the first time ever, the Law Society will broadcast Convocation live on October 25, 2012 to hold a live debate – over the Internet. Feel strongly about the options and the alternatives? This is your chance to contribute.
There will be eight panelists leading the online debate and discussion, Antonin Pribetic, Catherine McKenna, Mitch Kowalski, Jasminka Kalajdzic, Garry Wise, Douglas Ferguson, Lee Akazaki, and myself. You can see some of my views (there are a lot more) in the CBA article mentioned above.
The platform will include Scribble Live and Twitter, which should be able to engage law students and lawyers in classrooms and law firms everywhere. More importantly, the aggregation of the data will minimize data loss and help preserve the disparate and distinct perspectives on the subject.
The mechanism they have chosen will appear to maximize all of the variables which Rowe and Frewer identify for the effectiveness of engagement:
- participant selection method (controlled/uncontrolled)
- information elicitation facilitation
- response mode (unlimited or open/limited or closed)
- information input (set/flexible)
- medium of information transfer (face-to-face/not)
- facilitation of aggregation (structured/unstructured)
Although there are some inherent losses of information from an online discussion over face-to-face dialogue, the ability to engage a larger audience and enhance the richness of the dialogue should not be overlooked. Rowe and Frewer do note that use of cable TV, Internet or telephone may disenfranchise those who don't possess these media, but the Law Society has promoted the event through e-mail and in several print publications as well. The response has been several thousand people have visited the website, and hundreds have already registered for further information, a much larger turnout than any in-person Convocation debate that I've ever seen.
When public opinion, as developed through the publicly expressed voices of individuals, both aggregated and in dialogue with each other, it has the power and freedom to influence policy and is an essential instrument of democratic self-governance. This process was described by Jurgen Habermas in 1974:
By “public sphere,” we mean ﬁrst of all a domain of our social life in which such a thing as public opinion can be formed. Access to the public sphere is open in principle to all citizens. A portion of the public sphere is constituted in every conversation in which private persons come together to form a public. They are then acting neither as business or professional people conducting their private affairs, nor as legal consociates subject to the legal regulations of a state bureaucracy and obligated to obedience. Citizens act as a public when they deal with matters of general interest without being subject to coercion; thus with the guarantee that they may assemble and unite freely, and express and publicize their opinions freely.
At the last Convocation I attended dealing with a contentious issue earlier this year I noted that if the legal profession fails to properly self-regulate, these decisions will ultimately be made from outside our profession, likely through the legislature. The key vote at that meeting centered around the familiarity of the public with the term "Upper Canada," and whether "The Law Society of Upper Canada" is what members of the public think of when they look for our Province's regulator.
I know from my observations that some confusion exists, and the Ontario Bar Association (OBA) receives far more online search queries for regulatory issues (i.e. discipline) from the public than the LSUC site does. Unfortunately nobody bothered to formally ask the public prior to the vote, so the decision was inherently an uninformed one.
This debate has the potential to actually engage the bar in ways none of us have ever seen before. I am hoping that you will all be part of it, or at least observe and learn from the exercise.