Law Societies as Democracies – Not!

First, I congratulate Treasurer Thomas Conway for opening up Convocation to the public via the internet – this has been a long time coming and has permanently shredded the mystique that has surrounded Convocation for far too long. Hopefully this opening up will inspire a new, fresher slate of benchers to be elected in 2015.

But there is still work to be done.

It was said at the last Convocation, and in various other forums, that democracy is messy but it’s better than the alternative. Cue the dramatic music.

That kind of cold war rhetoric is quaint and interesting, even in the context of an actual democratic country. However it is grossly inappropriate in the context of a corporation where the board of directors is elected not to serve the interests of the shareholders who elected them, but to act in the best interests of the corporation.

The Law Society of Upper Canada (“LSUC”) is a corporation without share capital.

It is not a democracy.

Benchers are LSUC’s board of directors and are elected by the membership to carry out LSUC’s “functions, duties and powers under [The Law Society Act having] regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.”

The Act does not state that benchers are to bow to the wishes of those who elected them, nor to the wishes of other legal stakeholders.

The common disconnect among benchers is a belief that those lawyers who elected them are their constituents and they are to act as directed by them; that they are to consult with their constituents; that Convocation is the voice of the profession.

None of this is correct and in fact this mindset is contrary to the Law Society Act.

No where does the Act suggest that the “interests of lawyers” coincides with the “public interest”, in fact they may be at odds with each other – all the more reason for benchers to be barred from reading aloud letters from other lawyers at Convocation, and certainly barred from suggesting that “I have spoken with my local lawyers association and they all want articling to continue.” On any other board of directors these comments would be met with rolled eyes and derision, followed by a request that the director quietly resign.

There is a glaring lack of governance training and governance knowledge among most benchers, which results in poor decision-making. Most benchers are litigators schooled in the belief that long-winded adversarial debates are a form of good governance – they are not. Nor is it appropriate to rise during Convocation and congratulate ones “opponents” on “their spirited debate that added to the discussion.” It seems to be well-past time that the number of litigators who may be elected as benchers should be strictly limited.

Good governance requires benchers to make well-reasoned decisions (read: without emotional attachment to nostalgic memories) based on research and data presented to them by staff or LSUC committees, “in a timely manner” (query whether this was achieved in the articling debacle) and in a manner that is in “the public interest”. One should question whether or not this process was followed in Convocation’s discussion on the parental leave program in which the data clearly indicated that this very expensive program was a failure and not solving the problem it was created to solve. What part of the public’s interest is served by continuing this failed program?

But I digress.

The root of LSUC’s poor governance can be found in the absurd number of benchers. The number of elected benchers is ridiculously large at 40. By way of comparison, Council for the City of Toronto, which any observer will agree is a gong show, has 44 councillors. And as if 40 elected benchers was not unwieldy enough (unable to even fit into Convocation’s chambers), there are also 8 lay benchers, a number of honorary benchers, all the former Treasurers, as well as those benchers who by 2015 will have been a bencher for more than 16 years. And someone actually thinks that having such an enormous group of people making decisions is workable and a model of good governance?

I could go on, but blogs by their nature, are to be pithy.

I will conclude by simply saying this:

LSUC is a $100 million corporation – it’s time that it was governed like one.

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Comments

  1. Surely you jest, Mitch.

    Why would a profession shrouded in the mystique of the old boy network and based on the “collegiality” of traditional partnerships ever want to see its governing body run like a corporation?!

    The principles of corporate governance may be appropriate for those businesses that seek our advice, but we, as lawyers, are not in business. We know better. Sound governance principles need not apply…

    Nicely done.

    David Skinner

  2. Much of what Mitch says is right and is well said.

    It is particularly right to say that Convocation is not a democracy in the sense of represention the interests of its electors as opposed to the public interest.

    But Mitch seems to suggest that fervent open debate in Convocation on important matters of pubic policy is not a good thing. If that is what is being said then I entirely disagree. Lawyers and democrats must believe that truth is best found through debate. Such debate is sometimes messy. Some things that are said may by misguided or inappropriate. But the importance of public debate is no quaint concept or cold-war relic.

    And the articling debate was fully appropriate in this sense. There were two proper public interests to consider; entry-level competence and fair access to licensing. These are proper regulatory objectives. How to best address these objectives was difficult and worthy of debate.

  3. I am inclined to agree with Malcolm. But even if the Law Society were a corporation run for the benefit of its shareholders (a bad analogy for a number of reasons), it might well be appropriate for a director to mention in a policy discussion what the views of a stakeholder group were.

    Some corporate theorists believe that corporations, especially larger ones, should be run in the interests of many stakeholders, and not only of the sharedholders. So the interests of employees, customers, neighbours and even the environment may be legitimate considerations.

    Anyway, Mitch quotes the Law Society Act to show the interests in which the benchers operate. They often do a pretty good job at keeping those interests in mind, despite the pressure from many lawyers to preserve the interests of lawyers in preference to those of the public.

    Would the government do a better job by direct regulation of the legal profession in the public interest than the Law Society does? Why would it? Is there any North American jurisdiction in which government regulates lawyers? I know the UK has changed its system, but has it been changed for long enough for it to be judged a success?

  4. This presumes (in jest, I get it) that litigators cannot be good at governance. I dispute that. Procedurally though, there is much that could be improved.

    I also disagree that the root cause of LSUC inefficiency is simply in the number of benchers.

    Whereas Mitch takes issue with the law society for failures of s. 4.2 principles, he forgets that it is the bar that elects those benchers.

    The fact that lawyers who elect these benchers still don’t get the principles and purposes of the law society, and contact the benchers with comments reflecting this, is of a far deeper concern. It speaks directly to self-regulation, the boogie man that everyone knows is lurking behind these discussions.

  5. Thomas S. Harrison

    Self-regulation in the legal profession is a privilege that is becoming increasingly rare in a world. Good governance practices include mechanisms to encourage transparency and accountability in an evidence based decision making model. The Law Society is making commendable efforts to modernize their administration towards these ends, but many would say that more needs to be done. In particular, some of my students, who were directly affected by the recent changes, expressed dismay that they appeared to not have a larger voice in a decision that sometimes seemed more like a parliamentary debate in which the participants advocated views, that often appeared to be based largely on their personal anecdotal experiences. If self-governance of the legal profession is to remain our preferred approach, then these concerns, as well as the views expressed by others who have cared enough to contribute to the discussion, have to continue to be addressed effectively.