Much like Bronte sisters, French hens and celebrity deaths, my comments about the Law Society of Upper Canada come in threes. And in an effort to pull Malcolm Mercer away from the dark side and bring him into the light, my comments today will focus on solutions. : )
When LSUC was formed in 1797 it was a model for the Commonwealth. More than 200 years later, the governance structure has failed to evolve (ignoring the fact that Upper Canada itself was tiny and ceased to exist in 1841 before eventually evolving into the exponentially larger province of Ontario).
In 1797, benchers would very comfortably sit around a large table to govern the fledgling law society. The very size of the Convocation Room at Osgoode Hall should have given some guidance as to the optimal number of benchers to manage the law society – but it was not to be.
In 1797 it was inconceivable that LSUC would one day be a $100 million entity.
And it would have been mind-blowing to benchers in 1797, that Convocation would have a budget just for itself of $3.0 million.
It’s time to re-think LSUC’s governance.
Starting from a blank slate, would we really choose to govern a $100 million corporation through a huge number of elected and unelected benchers?
I think not.
If we were to create a new governance structure for the law society in 2013, how would we build it?
I suggest that we would choose to create a board of directors (of a size that fits the boardroom table in Osgoode Hall) in which directors are selected for skill-set and diversity – much like directors of well-managed corporations all around the world are selected.
What are the benefits?
Here are just four:
First, the cost of Convocation would be substantially reduced. Remuneration for this smaller group of benchers would be recalibrated to be in line with directors of other large Canadian corporations and they would be expected to act as such. They would receive (if they didn’t already have it) proper governance training preferably with an accredited provider (such as the Institute of Corporate Directors).
Second, we would now have a group of directors with diverse skills/experience/backgrounds – something perennially missing from Convocation. The current electoral process over-weights Convocation with litigators who have a very different experience/skill-set from solicitors – this skews discussions/decisions, as we saw in the articling debate. But just as importantly, a new process would create a slate of directors that better reflects the diversity of the profession (age, gender, race, etc.). Better diversity creates better decisions.
Third, a smaller group of directors creates a more manageable and focussed decision-making process – good process leads to good outcomes.
Fourth, it would allow directors to finally act in the best interests of LSUC. The current electoral process is overly politicized which leads benchers to believe that they have constituents to which they are to pander. Good directors objectively consider the views of relevant stakeholders, they do not pander to them.
With courage, benchers can once again choose to create a new model for governance of law societies in the Commonwealth.
But to do so, a great many of the current crop must be willing to sacrifice their own personal ambitions for the good of the profession.