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“Why Is the Law Society Donating to Political Parties?”: Some Answers and Questions

“Why is the ‪@LawsocietyLSUC donating to political parties? Why is my membership fee used to support the Conservatives.” This tweet by Ottawa criminal defence lawyer Michael Spratt caught my eye on an otherwise slow Tuesday in February. It had never crossed my mind that the Law Society might be in business of making political donations. The concept seemed strange, if not a bit troubling.

The tweet linked to an article published in the Law Times just over a week earlier on February 10, 2014. Although mostly detailing Elections Ontario data about donations made by law firms to political parties, the article also reported:

Among legal organizations, the Law Society of Upper Canada and LawPRO were generous donors last year. The law society gave $9,000 to both the Conservatives and the NDP and donated some $3,000 to the Liberals. LawPRO matched the law society’s donations to the Conservatives and the Liberals.

After reading this article, I conducted an informal (and highly unscientific) poll of Ontario lawyers asking their thoughts about the Law Society making donations to political parties. The individuals I talked to uniformly shared my surprise and concern. On behalf of the Law Society,

Roy Thomas, Director of Communications, explained over email:

Contributions are only made through the purchase of tickets to attend events hosted by the parties and/or elected politicians. Tickets are purchased within the permitted limits described in the Election Finances Act.

The Law Society’s goal in participating in these events is to advance the knowledge of the government and the opposition regarding the agenda of the regulator and justice issues more broadly. This includes the duty to act so as to facilitate access to justice contemplated in the Law Society Act. It is also an opportunity to increase awareness of the Law Society’s distinct role as regulator among government’s legal stakeholders. 

Put simply, the Law Society bought face-time with political parties in order to advance its agenda as a lawyer regulator and promote justice issues: far from nefarious goals. Although it is difficult to quantify or itemize the benefits the Law Society might reap by attending such events, ensuring that one is in the right room with the right people is central to the government relations strategies of many business and industries. In other words, there seems to be practical logic behind the Law Society’s efforts here.

It also bears mentioning that the Law Society’s donations of $21,000 represent a small proportion (0.021%) of the just over $100 million in “direct expenses” incurred by the Law Society annually. The Law Society is not spending a large amount of money on these activities, relatively speaking.

Case closed? Maybe not.

What makes the news of the Law Society’s donations to political parties strange and concerning is, of course, the Law Society’s status as an independent regulator of lawyers. As a number of legal ethics scholars have observed, the concept of lawyer independence and what it requires tends to be nebulous.[1] It seems plausible, though, that one of the minimal requirements of a regulator who claims to be independent is to refrain from donating to political parties.

By way of a comparator, it wouldn’t seem like a good idea to most of us for the Office of the Superintendent of Financial Institutions (OSFI), the independent agency that regulates the banking industry in Canada, to exchange money for access to political powerbrokers at fundraising events for political parties. We would want to the regulator to be above the political fray. Indeed, given the status of the OSFI as a government agency, I assume that such payments would not be permitted by law. The irony in this case is that it seems that it is Law Society’s very independence from government that enables it, as a matter of law, to make political donations.

Adding another layer to the issue is the fact that the Ontario Bar Association—the body traditionally associated with having an advocacy mandate to advance the interests of the legal profession in Ontario—is also reported to have made donations (“$8,100 to the Liberals, $7,700 to the Conservatives, and about $4,300 to the NDP”). Are lawyers benefited by having multiple organizations engage with political parties to advance their interests? Does the Law Society’s activity on this front take it too far outside of its functions as articulated in section 4.1 of the Law Society Act, namely “to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

Even if we do see advocacy as a proper function of the Law Society, there still remains the question of whether or not political donations should be part of this advocacy function. Government relations can mean attending fundraising events, but it doesn’t have to.

Ultimately, the question here isn’t whether or not the Law Society can donate to political parties: this isn’t illegal and the Law Society clearly has the money to expend on such activities. But should the Law Society be doing this? What is gained and what is lost when the Law Society, as an independent regulator, exchanges money for access to politicians? If the implication here is that making donations is simply a cost of doing business for organizations that wish to advance the public interest and/or the interests of their constituents in relation to the legislative agenda, what message is being sent to the public about our legal system? Given the concerns raised above and the surprise that many members of the Law Society have had when they learned about these political donations, discussion about the desirability of future political donations deserves a place on the agenda.


[1] See, e.g. Alice Woolley, Understanding Lawyers’ Ethics in Canada (LexisNexis Canada Inc., 2011) at 7; Richard Devlin & Porter Heffernan, “The End(s) of Self-Regulation” (2008) 45(4) Alta L Rev 169.

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Comments

  1. I have recently filed a petition for judicial review of the conduct of one of Canada’s law societies and I plan on presenting an argument about a pervasive and inherent bias that afflicts the entire legal profession. I have the same reaction every time I see the use of the term “independent” to describe lawyers or judges. This alleged independence is mentioned constantly as a presumption, but it is an illusion.

    I will be relying on an article that I found quite recently and that, if I’m successful, may be cited by others. It is “The Troubling New Science of Legal Persuasion: Heuristics and Biases in Judicial Decision Making”, published in the April 2013 edition of The Advocates’ Quarterly (and accessible through HeinOnline). It uses one term in particular on which I intend to rely: “affinity bias”.

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