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Enough With “The Law Society of Upper Canada”

Many Ontario lawyers think the “The Law Society of Upper Canada” is still a great name for their governing body. They oppose the suggestion — no, the mere possibility — that the LSUC’s Strategic Communications Steering Group might recommend a name change. Read this article in Law Times for the details, especially the comments at the end in support of the current name — they’re a real treat.

I cannot get my head around lawyers’ continuing support for the term “Upper Canada.” The current year, last I checked, is 2017. There hasn’t been an “Upper Canada” on any reliable map since the jurisdiction was abolished through union with Lower Canada in 1841. The term is 176 years old. It predates our entire country.

Google “Upper Canada” and you’ll find links to a private school, a shopping mall, a daycare centre, and a cheese factory, among other notable entities. What you won’t find is any other organization, let alone a professional regulatory agency, that uses the term in all seriousness to refer to the province of Ontario. Including “Upper Canada” in the law society’s name is, on its face, inaccurate — the law society does not govern lawyers in Upper Canada, it governs them in Ontario.

But then again, what does “law society” itself even mean, at least to anyone who’s not a member of the legal profession? To the layperson, “law society” sounds like an exclusive private club with heavily curtained rooms and overstuffed chairs where lawyers meet to discuss esoteric issues of jurisprudence and sip brandy from snifters — or wine from their private cellared collection. So maybe it’s not that inaccurate after all.

Whatever the “Law Society of Upper Canada” might signify to non-lawyers, it does not communicate in any way what the organization is actually supposed to do: Govern the conduct and ensure the competence of lawyers and other legal services providers in the province of Ontario, acting throughout in the public interest. Nothing about the name tells Ontarians, “This organization exists to serve you, to ensure you are treated effectively and fairly by legal services providers in this province.”

Yet many lawyers are ready to storm the barricades to prevent a name change. Here are some of their robust defences, as found in the Law Times article.

  • “It’s always been the Law Society of Upper Canada. It has got historical value.”
  • “The history of Upper Canada is something to be celebrated and remembered.”
  • “The existing name is not offensive and it is historical in nature. “
  • “The law society was and is the oldest law society in the Commonwealth and that is a historical fact that I believe should be venerated.”

These are not arguments. They’re statements of opinion: Old is good. Historic is good. Tradition is good. You know what “tradition” means, right? It means, “This is the way my group has always done things.” I don’t need to list for you all the things in Canada and the United States that were ”traditional” even 50 years ago to make the obvious point: “Old” and “historical” and “traditional” are not necessarily positive attributes. Tradition is not prima facie a virtue. And if it’s the only argument you’ve got, your case is unbelievably weak.

An organization’s name tells the world what it is and what it stands for. “The Law Society of Upper Canada” sends a very clear message: This organization is about law and lawyers and tradition. It is not about the people and the province whose interests it as statutorily created to serve. It is opaque and inaccessible to these parties — and as recently as 2012, the organization rejected an opportunity to start changing that opacity and inaccessibility merely by changing its name. You couldn’t come up with a better example of the profession’s institutional resistance to progress in legal services if you tried.

I frequently tell lawyers, when examining their law firms’ business practices, to ask a simple question: “If we weren’t already doing it this way, would we start?” If we were creating an organization today to regulate the provision of legal services in the province off Ontario, would we seriously call it “The Law Society of Upper Canada?” And if we wouldn’t start off this way, then why do we insist on continuing stubbornly down this archaic path?

If this possible name change even reaches the point of becoming an actual proposal (which I suspect it won’t), and if the law society’s Benchers (another enigmatic term) again defeat this motion (which I suspect they would), then they will have given us another data point confirming that they’re more invested in indulging their own fondness for tradition than in being accessible, understandable, and approachable to the people they’re meant to serve.

Comments

  1. I find this perennial issue perennially fascinating, and so thought I’d offer some musings. (For what it’s worth, I don’t have any strong commitment in either direction with respect to changing or retaining LSUC’s name.)

    First, it strikes me that one of the primary claims in favour of changing the name is, at root, an empirical one: that some significant set of the public finds the LSUC name confusing (potentially even offensive?). It would be interesting to see that validated. In this debate, we generally hear a lot of lawyers speaking to the issue – asserting that some large group “out there” doesn’t know what LSUC is, what it does, or where to go to complain about their lawyer. (For instance, the Law Times article quotes only lawyers.) It would be informative if we heard those concerns voiced by people who actually have them, rather than by lawyers speaking for them – we might find that the nature and valence of the public’s concerns about the name are different than what LSUC licencees assume they are.

    Second, we might find it harder than it first looks to craft a name which accurately and adequately signals what it is that this entity does. If “Law Society of Ontario” is out, it’s not clear that other options are improvements. “Lawyers Regulation Authority” (pace the English Solicitors Regulation Authority)? “Lawyers and Paralegals Regulation Authority”? “Lawyers and Paralegals Regulator”? “Legal Service Providers Oversight Commission”? “The Place You Go to Complain About Lawyers”? I don’t mean to be glib – ultimately, if the goal is to create a name which properly communicates to non-licencees what the entity actually does, that name should only be crafted in conjunction with feedback from the people whose current supposed confusion we’re actually trying to address.

    Finally, we should note that law is not the only profession whose regulatory body has a less than transparent name. Want to complain about a medical doctor? Go to the College of Physicians and Surgeons of Ontario (oddly enough, that’s *not* the place you go to get a medical education). Complaints about an accountant? Chartered Professional Accountants Ontario – a name which provides no indication whatsoever that the body has any regulatory authority.

    It may be that knowing what the LSUC is and does is just one of those bits of information that we can and should reasonably expect an informed adult member of our society to possess (assisted by Google, of course). Sort of like how we assume people know that “ombudsman” means “the place you can go to complain about something the government did”.

  2. This clueless Chicagoan was having a beer with Canadian lawyer who mentioned he was Treasurer of the Law Society of Upper Canada. And, I thought, how nice. I later learned I was talking to, in effect, the “President of the Ontario Bar Association”! A different cat altogether.

    Something else possibly relevant to this conversation, after many years the Association of the Bar of the City of New York changed its name to New York City Bar Association.

  3. I don’t a have a horse in this race either, but I’ll add my own musings:

    Historical names are usually be more descriptive than the catchy modern ones that replace them (e.g., Greater Toronto Transportation Authority, which became Metrolinx [which is not an urban predator], or Ontario New Home Warranty Program, which became Tarion (which is not a Greek god].) It’s rare to find an organization name that both keeps up with the times and is descriptive. We are usually satisfied with names that allude to the sphere they are describing. (e.g., ServiceOntario). By this standard, LSUC succeeds.

    Secondly, I don’t think we can dismiss “Old is good … tradition is good” arguments (or opinions) so easily. We do provide legal services in a certain tradition (of our British forbears, as transplanted in this part of North America), and affinity for a historic name evidences a respect and admiration for that tradition as well as a desire to carry it forward. A historical name tinged with honour and pride inspires member to strive for something higher. A new name, on the other hand, could signal a break from the past and a desire to shift towards a different paradigm, which might be a scary prospect to some if the values of yesterday are more appealing than the values of today.

    And, as another commenter said, for all we know the public might prefer our anachronistic name (including its baggage) as well. People generally like being part of a society with institutions steeped in history, so long as those institutions are seen as benign.

  4. But see the CONSTITUTION ACT, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 138. From and after the Union the Use of the Words “Upper Canada” instead of “Ontario,” or “Lower Canada” instead of “Quebec,” in any Deed, Writ, Process, Pleading, Document, Matter, or Thing shall not invalidate the same.

  5. As one of the 3 members at Convocation who voted for this motion in 2012, I probably should jump in. I don’t have a “horse in the race” either, but after hearing the spurious arguments against the motion to change the name, I was compelled to take the other side and speak publicly on the issue.

    In particular, I was the single lawyer (hardly a group) who asserted that the public simply does not know what the regulator is by name. Tradition may be fine (it isn’t always), but the law society’s role is to protect the public interest, and not the interest of the legal professions. You might be surprised about how little the public cares for our traditions.

    This issue of public awareness around “Upper Canada” should be a common sense fact. Few people recall their high school civics class sufficiently to recall the nomenclature. The exception to that may be those who have a high number of lawyers in their social and familial circles, i.e. the affluent and influential members of society who were never at risk for being confused over who the identity of the regulator is, or perhaps have rubbed shoulders with graduates of a prestigious Toronto school which shares the same name.

    If “empirical” information is required to determine this objectively however, it only adds to how far removed the legal community is from the public. The public being the masses of people who have never met or known a lawyer their entire life.

    This empirical information would be gleaned from our law society dues, and may result in an increase in fees given the fact we’re now calling for LSUC to conduct independent sociological observations of the public and their perceptions of their role as the regulator. While I’m not entirely opposed to that if that is what is needed to resolve this particular issue, I’m sure there are many lawyers who would take issue with said fee increases.

    Perhaps more importantly, such inquiries appear to only take the regulator away from its core goal of governing the legal profession in the public interest, and more towards resolving philosophical and mundane disputes between the bar.

    For those confused on this particular issue, I encourage them to expand their social circles. The Victorians in the 1800s would refer to this particular tradition (sic) as “slumming.” The New York Times described this practice in 1884, which spread from Europe to North America, as follows,

    Slumming commenced in London […] with a curiosity to see the sights, and when it became fashionable to go ‘slumming’ ladies and gentlemen were induced to don common clothes and go out in the highways and byways to see people of whom they had heard, but of whom they were as ignorant as if they were inhabitants of a strange country.

    [emphasis added]

    How sad that we continue to be so estranged from these strange people who inhabit the strange “country” of the unprivileged.

  6. In the spirit of evidence-based policy-making, it’s preferable not to ground reform efforts in assertions, suppositions, anecdotes, or “common sense facts” which have not been substantiated. That’s not to say that the assertions of public confusion are wrong – but we could check fairly easily. I would think that, say, an enterprising reporter from the Law Times could just, y’know, *ask* some non-licensees if they’re confused by the name “Law Society of Upper Canada”, or don’t understand where to go when they want to complain about a lawyer. (The same reporter might also, if so inclined, venture to ask said non-licensees about what they think LSUC’s reform priorities should be, but now I’m just blue-skying…) (As an aside, is there a comprehensive list of “common sense facts” that everyone just knows and that it is considered gauche to call into question? I’d love to get my hands on that.)

    With respect to the issue of costs, it would be helpful if we had an estimate as to what the costs would be of a name change / re-branding. That would assist in making the assessment of whether the funds are appropriately allocated to a name change or could be productively spent on other reform efforts.

  7. Bob, this is anecdote not data, but when I was writing the second edition of Understanding Lawyers’ Ethics in Canada a helpful copy editor at LexisNexis went through and changed all the references to LSUC to the “Law Society of Ontario”. Which could mean good news – they understood what Upper Canada referred to, or bad news in that they thought it was obviously an error for the organization to be called by such an archaic name.

    I would have thought Ontario Lawyer and Paralegal Regulatory Authority would be clear enough (at least until there are other legal service providers added). I can’t see any downside to that change and I think it’s just sort of obvious that that would communicate more clearly its function than ‘Law Society of Upper Canada” does.

  8. One thing is clear the term “law society” is used throughout the Commonwealth. So for those who may argue that “Upper Canada” is the holder of the British heritage/tradition — it’s actually the other half of the name that carries on tradition. In terms of regulatory bodies, throughout the Commonwealth there appears to be variation on the role of the law societies. In many instances the law societies are on par with what in Canada are the various Bar Associations. In some instances such as in Australia and Scotland there may be a sharing responsibility of regulatory duties of the profession with a Regulatory Authority or Regulatory Commission.

    Whether using Safari, Bing, Explorer, Google, Yahoo which ever, a search on the term “law society” will lead the searcher to the LSUC in Ontario. Safari does offer an option of “law society of ontario” which then leads to the LSUC.

  9. Back when Omar was in the minority at a Law Society AGM, I was a new bencher and in the majority. I then thought that the name should be maintained because there is value in tradition. Not because we should be posh but rather because professional pride and honour are valuable and protective in the interests of those we serve. I still think that there is something to that although less than I once did.

    I now think that we should change the name for two reasons. The first is that the public that the Law Society will surely be confused by the reference to Upper Canada. I think that this is “sort of obvious” especially to those many people who are new to Ontario.

    I also think that there is value in taking steps that make clear that the Law Society serves the public interest. Just as tradition subtly promotes pride, I think our traditions also can subtly promote lawyer-centricity. We should be doing what we can to always have the Law Society focused where it should be.

  10. Bob,

    I am all for evidence-based decision making. Let’s be clear though, a single news article is not a form of scientific evidence by any stretch of the imagination.

    The lack of information is frequently used, unfortunately, to stifle progress and promote necessary change. This is not new for the law society either. Consider the countless resources put into The Challenges Faced by Racialized Licensees Working Group over 4 years, all to come up with the conclusion that there is widespread discrimination by lawyers against other lawyers on the basis of race.

    Shocking, really. But ask a racialized lawyer some time and they’ll give you the low-down in record time.

    Even then, the debate at Convocation over racialized lawyers was a huge embarrassment. Lawyers have the unique ability to stare clear evidence in the face, and still attempt to choose inaction in light of it.

    For anyone who’s paid attention to the legal community in the 21 st. century, we would know that evidence is not what is stopping us.  Our tradition in fact is to far too frequently oppose doing “the right thing” simply because we can.

    That’s not to serve as a condemnation of Convocation, or even benchers like Malcolm.  As he demonstrates, the legal community is eventually capable of change. However, I tend to think that Malcolm is far more analytical and pliable to principled-based analysis than perhaps some of the others in the province.

    What that might mean is that some of us have to continue our efforts, and eventually they will snowball into action. Eventually, but not because of some news article confirming rather obvious observations.

  11. I think we might be in danger of misconstruing the underlying question, so I’d like to attempt a reiteration of it. As an aside: I’m in favour of changing “Law Society of Upper Canada” to “Law Society of Ontario” on the basis that “Upper Canada” is an anachronism. I’m open to the possibility of changing the name to something along the lines of Ontario Lawyer and Paralegal Regulatory Authority, though that would put Ontario out of synch with the naming convention in other provinces, which might pose its own set of issues.

    In any event, I don’t think the underlying issue is “do people know what Upper Canada is”, rather the underlying issue is “do people find the name Law Society of Upper Canada confusing, off-putting, offensive, etc.”. If that’s the question, I’m not sure how we answer it without just *asking them*, nor am I sure why would we not take that simple step. One proposal: rather than assuming that people surely feel or think something, or assuming that they obviously do (or should), we can demonstrate our public orientation by involving them in the name change process, and inquire as to which of the naming options they find most informative and otherwise congenial.

  12. Bob,

    I’m certainly in favour of your proposal.

    Any offence to the name has already been expressed, by members of Indigenous and First Nations communities.

    The possibility of confusion arises from the public knowledge or awareness of “what Upper Canada is.” This concept is a necessary subset of the underlying question that you have accurately construed.

    Although it might appear that I’m simply being pedantic, the foregoing comments are a fraction of what will be expected to occur at any debate at Convocation.

  13. Glenn EJ Sandberg

    I see a trend here. Here’s where it leads:
    “Barristers and Solicitors ” are next to go. Someone must be offended by the terms. And they are “old”, “historic “, “traditional”…in other words, they gotta go. Let’s become “Legal Service Providers” instead. More modern and American even than “attorneys “.
    Then we’ll go full American and get rid of our gowns and waistcoats in favour of “come as you are” dress. I’m sure someone finds them offensive…

  14. Glenn,

    You’re already a few years too late.

    Way back in 2008, the law society amended Rules 2.08 (6), (7) and (8) of the Rules of Professional Conduct to refer to lawyers and paralegals collectively as “licensees.” The motivation had less to do with offence, and more to do with clear and transparent language that is easily understood by the public.

    Most of us have removed the terms “barrister” (and conversely “solicitor,” where appropriate) in all court documents or back pages.

    However, you do highlight one of the biggest problems with adherence to tradition. Even when such traditions are formally changed, they tend to haunt us for many years to come.

  15. Resistance to change isn’t anything new. But arguments that changing an outdated name means something historical are suspect. Are the law societies formerly known as, for example, The London Law Institution, the Incorporated Society of Attorneys and Solicitors of Ireland, The Incorporated Law Institute of New South Wales, and The Incorporated Law Society of Hong Kong somehow missing some essential quality or link to the past? I doubt it. It’s just that lawyers’ inflated sense of self can blind them from what a law society name should be doing, at its very basic level – describing what the organization is.

  16. Re OHR, only a bunch of lawyers would think that calling ourselves “licensees” would be clear and transparent language that is easily understood by the public! For that matter, calling ourselves attorneys would probably make more sense to most of the public than barristers and/or solicitors, judging by how often I am called an attorney by a layperson.

    A clear name for LSUC might be something like “Ontario Lawyers and Paralegals Regulatory Organization”. “Ontario College of Lawyers and Paralegals” sounds more like an educational institution than a regulatory body like the CPSO.

    I note that one advantage of the LSUC name is it includes “Canada” – which helps remind foreign colleagues where we’re from. Perhaps a Solomon-like solution is to split the difference and call it the “Ontario Law Society of Upper Canada”!

  17. I vote for the Judean People’s Front, but not the People’s Front of Judea.

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