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Public Interest Regulation: Governance Reform at the Law Society of Ontario

The Law Society of Ontario (LSO) has launched a call for comments on potential governance reforms. Reform is long overdue. The governance of the LSO is archaic and in no way approximates the structure of a modern, effective board. To its credit, the LSO appears to recognize the problem and is attempting to move towards modernizing its governance.

There are currently 90 members of “Convocation” – the archaic name for what is supposed to be a Board of Directors at the LSO. These 90 consist of 45 elected licensees (40 lawyers and five paralegals), 8 lay benchers appointed by the Ontario government, the Treasurer, the current Attorney General of Ontario and 35 ex officio benchers. The ideal size for a Board of Directors is 7-15 persons.

The LSO’s governance is anomalous and does not represent best practices for a public interest regulator or for boards generally. This is acknowledged in the Governance Practices Review prepared by Carol Hansell for the Law Society and submitted to the Task Force in June 2017 (“Hansell Report”). The Hansell Report’s Executive Summary notes:

LSUC’s board (Convocation) is significantly larger than almost all boards in the comparator group. Although organizations governing the legal profession had larger boards in general than organizations governing other professions, Convocation is large even when compared with other organizations governing the legal profession.

The inclusion on a board of ex officio and honorary directors (as is the case for the LSUC) is unusual.

Three year terms for directors are more common than the four year terms of the elected Benchers.

Staggered boards are very common (meaning that only some of the directors are elected each year). This is in contrast to the LSUC, where all Benchers are elected at the same time (although Benchers appointed by government are not necessarily all appointed at the same time).

The twelve year term limit for elected Benchers is longer than the term limits in any organization in the comparator group.

In short, LSO governance is anomalous in multiple ways. There is no indication that these anomalies have produced better governance for the LSO. The Hansell Report does not directly address the extremely high percentage of benchers that are elected by members of the professions (i.e. the regulated persons): 45/53 (85%). There is no other public interest regulator in Canada identified in the Hansell Report with such a high percentage of elected board members (I exclude associations who represent their members, like the Alberta Teachers Association which both advocates for its members as well as regulates them).

The Law Society of Ontario is a public interest regulator; it is not the representative body of lawyers in Ontario. As a public interest regulator, it is not appropriate for it to be dominated by the persons that it regulates. Professor Alice Woolley at the University of Calgary’s Faculty of Law has argued that electing members of Convocation is problematic for the LSO’s public interest mandate.

The LSO needs to address potential conflict of interest for its governors. As is well-known, lawyers have lost the privilege of self-regulation in other jurisdictions due to conflation of the representative and regulatory functions (eg UK, Australia). Professor Alice Woolley has called Canada arguably “the last bastion of unfettered self-regulation of the legal profession in the common law world”.[i]

Lawyers (or paralegals) who are serving in executive positions on legal organizations (CBA, OBA, Advocates’ Society, Federation of Ontario Law Societies, District Law Societies, Ontario Paralegal Association, Paralegal Society of Canada, etc. should not be eligible to serve on the governing body of the LSO which is responsible for regulating the legal professions “in the public interest”. Either an executive member of such body would be ineligible to run for the governing council of the LSO or they would have to step down from their executive position with a legal organization if they were elected to the governing body of the LSO. Similarly, if a member of the governing council of the LSO is elected or appointed to an executive position with a legal organization, their seat should be immediately declared vacated.

As a legal matter, it is not possible for a person to simultaneously fulfil their fiduciary obligations to one board to act in the best interest of their profession while at the same time fulfill their fiduciary obligation as member of the governing council of the LSO to act in the public interest. This is precisely the sort of conflict that led to the demise of self-regulation in other jurisdictions. The LSO should proactively and prophylactically address this issue.

I would encourage the LSO to “ask the Moneyball question” about governance of the LSO: if we weren’t doing things the way we’ve been doing them (for decades, hundreds of years, etc.), how would we be doing them?” (See Jordan Furlong, “Ask Yourself the Moneyball Question”, Attorney at Work (September 19, 2011).

Based on the Hansell Report and recognized best practices in governance, the answers would be quite clear: the size of the Board would be 7-15 persons, specific competencies would be identified and recruitment and appointment to the Board would be based on those competencies, terms would be staggered and there would be no ex-officio or honorary directors. It is highly unlikely that members of the Board would be elected, but if they were, elected members would certainly be the minority of members of the Board.

___________________________

[i] Alice Woolley, Understanding Lawyers’ Ethics in Canada (Lexis Nexis, 2011) 4.

Comments

  1. It is not enough to say that the management structure of any law society should be altered to provide more representation for the public interest and less for lawyers (i.e., the membership of the law society). The sole criterion should be, “what is the best form of representation that can bring the law society closer to being capable of solving the access to justice-unaffordable legal services problem (“the problem”)? That is what is necessary to fulfill the purpose of a law society—to regulate the legal profession so as to make legal services adequately available, i.e., competently provided, ethically provided, and affordably provided.
    Just because changes are made so that there is a proportionate increase in the number of “public interest” benchers in law society management structure does not bring a law society any closer to serving its purpose. Because Canada’s law societies are managed by part-time amateurs, they are like an elected government without a civil service. Such a government cannot govern as is proved by the ever-increasing seriousness of the problem. They are “amateurs” because they do not have the expertise to solve the major problems of law societies because such problems are not legal problems. And, law societies don’t retain the necessary expertise, nor will they ask government for help. (To law societies, preserving their independence from government intervention is more important than ending the problem and the great damage it does to society, the court system, and to the legal profession itself.) There will be many more such problems that technology will impose upon law societies. But they will be incompetent to deal with any of them. Because of the nature of such problems it is no longer possible to be both a good lawyer and a good bencher. But law societies make no effort to resolve that conflict of interest.
    Current law society management is still a variety of early 19th century management. No matter how its complement of benchers is altered, it will still be inherently incompetent in this, the 21st century.
    Law societies need a civil service—just one, to serve all of the law societies in Canada because their major problems will be the same, having the same causes coast to coast to coast. And such problems are most competently and cost-efficiently dealt with by way of national solutions. But that requires a civil service.
    In the following article, I explain how to establish and finance such a civil service so that the problem can be solved and law societies rendered competent: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, pdf., June 7, 2018); online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 .
    Such a civil service can establish the necessary “support services method” of producing legal services that is essential to produce the large economies-of-scale that the affordability of all goods and services makes necessary. All of manufacturing and the infrastructure by which medical services are provided proves that.
    Shifting bencher qualification to greater representation of the public interest should make law societies more receptive to proposals for change and innovation. But that in itself won’t make them competent 21st century law societies. That will not be achieved until the problem is prevented from its ever-increasing victimization of the population, the court system, the legal profession itself, and Legal Aid funding. They are the major institutions of the justice system, i.e., when law societies fail, the justice system fails. And so it is that law societies are said to be “the lynch pin” of the justice system.
    Therefore, enable law societies to solve the problem of unaffordable legal services or abolish them in favor of a permanent institution having the necessary expertise, so as to be adequately responsive to the problem, and is truly accountable to the political-democratic process. Because governments do not hold law societies accountable to that process as the law requires, there has been no evolution in law society management structure since its creation in the 19th century. No pressure; no innovation. Perhaps more “public interest benchers” can provide that necessary pressure. But that will take more time than the problem’s inevitable end result will allow law societies.

  2. Gordon Turriff, Q.C.

    Adam:

    Adam:

    You make some good points. Unfortunately, these are not new issues.

    Some of your readers may be interested to know that the day before I became a bencher of the Law Society of British Columbia, effective January 1, 2002, I resigned as an elected member of the Provincial Council of the BC Branch of the CBA. And, in 2012, when a very well qualified BC bencher of the highest integrity became national president of the CBA without resigning as bencher, I resigned my membership in the CBA in protest. (I would have resigned my membership in the Law Society but I had to maintain my LSBC membership in order to continue practising law). As a bencher, I had repeatedly made the point about the danger of mixing the public interest with lawyer interests, but I hadn’t been able to convince the right people that every kind of mixing was bad, although at my instigation (before my eight year term as bencher had expired), BC’s benchers had introduced a policy that at the very least discouraged benchers from being, at the same time, lawyer interest and public interest policy-makers. In 2012, not having the wherewithal to give up my LSBC membership, I resigned from the CBA as the next best thing. My theory was that, as a proponent of lawyer independence, the CBA should have recognised that it undermined the lawyer independence case by not blocking the ascension of the BC bencher to the highly visible position as Canada’s leading advocate for lawyers.

  3. The civil service that I propose for Canada’s law societies (see my comment above and the article it cites) would be established at Ryerson University in Toronto, and at the University of Ottawa for its French language counterpart. These two universities provide the Law Society of Ontario’s (LSO’s) Law Practice Program. Therefore they have some of the necessary experience and facilities. Such would also enhance Ryerson University’s proposal to have a law school–a unique law school in that it could thereby teach skills related to my proposal that other law schools could not teach, i.e., the integration of a national civil service administration in the service of all of Canada’s lawyers with the purposes of a law school.
    Far more important than creating the appearance of greater “public interest” representation in LSO’s Convocation of benchers, is solving the access to justice-unaffordable legal services problem (“the A2J problem”). The former merely improves the appearance of a more balanced representation between “public interest” and “lawyer interest.” But the latter can restore the effectiveness of, and public respect for the justice system. That is what my solution to the A2J problem can achieve—substance beyond the mere appearance of necessary change.
    But for greater assurance of its success, LSO’s bencher composition should remain as it is. To increase the number of “public interest” benchers will reduce the number of “lawyer interest” benchers. That will reduce the number of LSO’s bencher-lawyers located throughout Ontario who can promote the success of the solution among the lawyers and residents of their communities. “Public interest” benchers cannot do that nearly as effectively. And because the solution I propose is a national one, the benchers in all other law societies in Canada could serve the same purpose. But success requires governments to hold law societies accountable for their performance, and therefore accountable to the people of Canada.
    Also, as part of the solution, I propose the creation of a “support services” method of producing legal services that would be sponsored by law societies. Without it, achieving the affordability of legal services for middle and lower income people is not possible (except for government-based “socialized law” programs, similar to Canada’s socialized medical services programs). See:
    https://en.wikipedia.org/wiki/Healthcare_in_Canada
    The big law firms could be of considerable assistance by hosting some of the support services. See for example, “Fasken InHouse, online,
    https://www.fasken.com/en/solutionhub/featuredsolutionshub/legal-innovation-and-service-delivery/fasken-inhouse#sort=%40fclientworksortdate79734%20descending
    It is a new division of the Toronto office of the Fasken law firm. In that way the big law firms could show that they are making a substantial contribution to helping general practitioners and other lawyers to serve middle and lower income people, instead of big law firms serving only the interests of large corporations, and the rich.
    Implement this solution, otherwise the legal profession will be just another industry superseded by technology, i.e., the application of electronic technology to legal services as is being done by the large commercial producers of legal services such as, LegalZoom, LegalX, and Rocket Lawyer, along with all of the great many small start-up users of electronic technology (“apps”) in the provision of legal services for retail markets. In the U.S., they are rapidly replacing the general practitioner. And they have started the same process in Canada.
    Law societies must join together to defend the market of the general practitioner. Such lawyers constitute 60-70 per cent of the membership of a law society. If the legal profession shrinks that much, it loses its connection to middle and lower income people–the majority of taxpayers and voters–and it would thus become much less authoritative and influential with governments, and law schools with their universities. Can more “public interest” benchers serve such purposes better than “lawyer interest” benchers? Solving the A2J problem is far more important than altering the appearance of law society management.

  4. It’s all very well to candidly discuss these issues on a website like slaw but the ability to change the reality rests principally with our governments. The law societies are created and empowered by statutes. Our Attorneys General should be paying attention. None of them are. And they won’t until these issues have some potential to effect the outcome of elections.

    So there’s an opportunity for an astute aspiring premier or prime minister, should one ever materialize.

  5. Ontario’s LSA enumerates four or five equal duties. Protecting the public is not paramount as I believe it is in most other provincial statutes. We tend to believe ourselves when we say things like “the best way to protect the public is to protect a strong, vibrant legal profession”. We get into trouble when we equate access to justice with the viability of our business models.
    Amending the LSA to make protecting the public paramount would be a good start but, then again, the legitimacy horse may have already left the barn.

  6. Timothy,

    Actually, protecting the public is inherent in the functions of the law society set out in section 4.1 of the Law Society Act (namely ensuring that members meet adequate standards of learning, competence and conduct). The act also sets out five different principles to apply in performing its function and the “public interest” is only one of those. But its hard to look at the statutory function of the law society and conclude that protecting the public isn’t the paramount purpose of the LSO.

  7. Carl being “inherent” is not being “paramount”. Have a look at the “duties” in 4.2 and try to convince me that protecting the public interest is paramount.

    Principles to be applied by the Society

    4.2 In carrying out its functions, duties and powers under this Act, the Society shall have 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. 2006, c. 21, Sched. C, s. 7.

    Now have a look at BC (and others):

    Object and duty of society
    3 It is the object and duty of the society to uphold and protect the public interest in the administration of justice by

    (a) preserving and protecting the rights and freedoms of all persons,

    (b) ensuring the independence, integrity, honour and competence of lawyers,

    (c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission,

    (d) regulating the practice of law, and

    (e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practise law in British Columbia in fulfilling their duties in the practice of law.

    Protecting the public is the singular object and duty of the LS of BC. Unabashed paramountcy.

  8. Timothy

    A couple of observations. First, your original claim was that “protecting the public” was not paramount under the LSO. Now your claim is that “protecting the public interest” is not paramount. Fair enough, but those two are not the same thing.

    Second, read the BC legislation carefully – it doesn’t say that the “object and duty” of the BCLS is to protect the public interest, it says that it is to protect the “public interest in the administration of justice”. So the law doesn’t actually support your claim. That is quite different (and narrower) than “protecting the public interest” in the LSO Act and distinct from “protecting the public”.

    Third, “Protecting the public” is inherent in the functions of the law society in section 4.1. Their function is to protect the public by ensuring that members meet standards of learning, professional competence and professional conduct in their practice of law. Section 4.1 is the provision of the LSO Act which lays out the core mandate of the LSO. When I say that protecting the public is inherent in the functions of the LSO, it’s because the whole purpose of section 4.1 is to protect the public. Section 4.2 tells the LSO how to perform that core mandate. Protecting the “public interest” is fine, but shouldn’t be paramount to other concerns such as promoting the rule of law or access to justice – given that the core function of the LSO is to protect the public by ensuring that legal services are provided in a professional and competent manner. Indeed, given that there might often be conflicts between the “public interest” and, say, the rule of law, providing paramountcy for the one at the expense of the other would pose a real risk to the practice of law in this Province.

  9. Fair points Carl. Your last sentence steps right into where I see a problem with the construction of Ontario’s LSA. In the field of endeavour with which I am most familiar the LSO has conflated access to justice with the viability of legal businesses at the public’s expense.
    To borrow your language if in protecting the public the LSO creates a real risk for our businesses then so be it.

  10. I am not sure what Tim and Carl are arguing about. Section 4.2 (3) of the LSA states:

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

    There it is. Perhaps Tim would prefer that it be moved to No. 1 and that 1 and 2 become 2 and 3, but I do not think it makes the slightest difference. No one ignores or discounts any of them. One could argue that 1 is an iteration of 3.

  11. Turning to Dean Dodek’s column, I disagree very strongly with his arguments. As it happens, he agrees with me about the size of Convocation, but does not know it.

    Dean Dodek argues that the ideal size for a board is up to 15 directors. Let’s use 15. Presumably, that would be for a board that directs a relatively homogeneous entity. But the legal services delivery world is anything but a homogeneous entity. The barrister profession is very distinct from the solicitor profession such that, in almost the entire World except most of Canada and the US, each is governed by distinct and separate regulators. In Quebec, the Chambre des notaires has a board of 16 and the Barreau has at least another 16, all for a combined bar that is smaller than the bar in Ontario. Thus, per Adam’s analysis, the LSO should have 30 board members.

    Now factor in paralegals. There are those who say they should be regarded and regulated as a separate profession. If so, they would need a board of another 15.

    But what about lawyers who are not barristers or solicitors in private practice? Government lawyers, in-house counsel, law professors, businessfolk who have maintained their memberships? Their environments are very different too. Maybe they should have their own board of another 15.

    I say that Adam thinks that Convocation should have 60 members, whether he realizes it or not.

    And that’s just board work. What about the other work benchers do that ordinary corporate board members do not do, such as the benchers’ work on education and standards committees and on discipline panels? Currently, it is quite common for there to be only one elected bencher on a discipline panel. Each panel of three must have a lay bencher and quite often the third seat is occupied by a fully remunerated non-bencher. Even with the use of non-benchers, there is a ton of time devoted to discipline work by elected benchers, worsened by the number of panels that do have two elected benchers. Benchers are not complaining. It is what they sign up for when they get elected.

    Yes, “LSO governance is anomalous in multiple ways”, for the simple reason that the LSO is unlike any other body in Canada. It is even unlike any other law society due to the size of Ontario and the work that the LSO takes on that smaller law societies cannot afford to.

    Convocation sometimes acts as the corporate board of a large company (the LSO is a One Hundred Million Dollar operation and is the sole shareholder of a Six Hundred Million Dollar operation); sometimes as akin to a municipal council; sometimes akin to a cabinet or even a senate; sometimes as a tribunal of law; sometimes as a school board given that we run and oversee entrance exams and life-long learning programs; and always as the regulator of a critically important profession.

    Given all that, it is surely better to have larger-than-Dodek-boards to ensure there are enough people to fill all these non-normal board roles. Or we can bring them all together into one sensibly-sized Convocation. And “sensibly-sized” is a far cry from 15 or even 30. It is 60 to 70.

    Because of all that anomalous complexity, terms that are too short make no sense. It takes a fair while for new benchers to learn the operations and acquire the expertise to fulfill their functions wisely. Many a new bencher has arrived convinced that big changes are needed only to learn that they have been previously duly studied and sensibly rejected or truncated for reasons so sound that the new bencher comes to agree with them. The new benchers have not been compromised; they have simply evolved their thinking in light of more and better information.

    As to staggering elections, that would lead to greater costs and voter fatigue (voter turn-out is already a problem). There is zero need to stagger them. While Convocation always has an excellent rate of renewal (minimum 30% per election; minimum 60% in the span of just two elections), there are enough returning benchers to maintain continuity and assist the newcomers. Term reductions and staggered elections would create more problems than they solve.

    Dean Dodek makes a mistake common to the critics when he says, without elaboration, that Convocation is comprised of 90 members, 35 of whom are ex officio. While technically correct, this misleads. Few of the ex officio benchers take part. Only about 7 or 8 ever show up with regularity, and, despite having no vote, they are extremely beneficial as history has shown time and time again. The ones who do not show up can also be beneficial at practically no cost to anyone.

    Example: Neil Finkelstein was one of Canada’s leading constitutional lawyers before his lamented death. After a stellar career as a bencher, he became a life bencher and never came to Convocation again. But he remained informed by receiving and reading the materials. Convocation faced a constitutional question. Neil, an $800 an hour lawyer, called in by conference and solved the problem at no cost to the LSO. Without him, the matter would have had to have been referred out, likely to a big firm in Toronto which would have done a wonderful review of and report on the issue at high cost despite the reduced rate such firms charge the LSO.

    Example: The Finance Committee wanted to explore ethical investing. A lifer (a former Finance chair) advised the Committee that the issue had been well studied before the current voting members were elected, been rejected, and he gave the reasons. He had no vote, but the voting members considered his evidence and made their decision partly based on it. Much time was saved.

    Example: The new real estate rules were improved by suggestions made by lifers, suggestions that were not made by elected benchers.

    Example: Most lifers are retired or semi-so and have a minimum 16 years of experience. They can step in when a discipline panelist becomes ill or conflicted at low-, or even no-, cost to the LSO.

    Example: ABS, the worst, and, if adopted, irreversible, idea to hit the profession in 1,000 years, nearly became LSO policy. It was two life benchers who rose in Convocation that fateful day and got the damn thing delayed. Thereafter, a lifer mounted an email campaign to educate his colleagues on the true nature of ABS, put forth counter-arguments that were either absent or given short shrift in the Report, and suggested alternatives that are now being explored. That campaign helped reverse what had been seen by many as a “no-brainer” to adopt to a “no-brainer” not to adopt. It led a bencher to pick his way through a crowd to say, “When I was appointed to the (ABS) task force, I was 100% for it. After reading your emails, I’m now 100% opposed.”

    It wasn’t an elected bencher that led the campaign; it was a lifer. To cite just one disaster averted, if ABS had gone through, there would be no real estate bar to speak of today – a bar that employs nearly one-third of all lawyers in private practice – and the public would be paying to a tiny cartel far more for conveyancing work for far less service (the US experience).

    There are countless other examples. It may be argued that other law societies are poorer for not having some life benchers. It may also be argued that the other law societies do not need lifers as much as Ontario does. Indeed, the Ontario lifers act as the lifers for the Country, bringing very useful institutional memory, long perspective, and no need to curry favour with anyone (lifers cannot serve as chairs or vice-chairs), to the LSO tasks, many of which most other law societies cannot tackle either at all or to the same depth. Importantly, lifers have no vote. If what lifers have to say is not accepted by the voting benchers, so be it. The voting benchers have all the power. Lifers are nothing more than a demonstrably useful resource that should be retained. Democracy is fully preserved to the electorate, to the elected, and to the vote-bearing appointees.

    In my observation, some of the people who want a smaller Convocation believe that, if only it were smaller, then all the people they disagree with would disappear and milk and honey would flow like gentle, sweet tsunamis. Life does not work that way. A smaller Convocation would run a higher risk of featuring a greater percentage of the people they disagree with, or of being taken over by a faction thanks to a stealth election. Not healthy. Even without stealth but due to block voting, it would also risk being jammed to the gills by benchers from giant firms. Whatever good such benchers do, such an outcome would also not be healthy.

    Further, many of the Convocation shrinkers expound mightily upon the need for diversity. How does shrinking the number expand diversity? They have no answer to that.

    Currently, among the 40 elected lawyer benchers, there are about 29 barristers, 6 solicitors, and 5 others (if I am off a little in the numbers, it is only by one or two here or there). Yet, solicitors are about half the practicing bar. There should be at least 15 solicitors in Convocation, and only 15 barristers. If the plan is to reduce the 40, what would we reduce it to? 15? 5 barristers, 5 solicitors, and 5 other? There is no way they would be able to handle the workload. Great squads of others would have to be hired at great cost to the Society (read: membership) to do the work that is now done by people who each devote 26 days of unpaid time to the tasks.

    Does anyone think that 5 barrister benchers could adequately bring to the meetings full visceral knowledge of the varied litigation practice environments of personal injury, family, criminal, medical malpractice, youth, prosecutorial, intellectual property litigation, and sole practices, small firms, mid-size firms, large firms, inter-provincial firms, and international firms, and villages, towns, cities, metropoli, and reserves? And what about representation from women and minorities? Could 15 benchers in total? Not a chance.

    Convocation features 27.5% elected benchers from racialized and equity-seeking groups of many backgrounds. Convocation is more diverse than both the Province and the profession. It happened because of the essential decency and forward-thinking of the vast majority of our profession. And it happened without any government intervention or any demeaning Statement of Principles. It would not have happened in a Convocation too small to accommodate the magnificent diversity of this Province.

    Ontario has 40% of all the lawyers in Canada. The LSO has quite a bit less than 40% of all the benchers in Canada despite being, by far, the most active law society in the Country, with the most work to do, and the resources to do it.

    Part of the work that benchers do is discipline work, work that has increased with the huge increase in the number of lawyers in Ontario. Thanks to the bloating up of the law schools and the plummeting of standards to absorb and pass the added hordes, lawyers are being called to the bar at a rate that is 5 to 7 times population growth. That inevitably leads to an increase in the number of discipline cases. Yet, some people want either to reduce the number of benchers who do that work, or to turn more of it over to non-benchers, all of whom do not contribute 26, or any, unpaid days). Who will pay for that? Maybe it should come out of law school revenues.

    There are 8 lay benchers – in our make-up, the right number. There are 5 paralegal benchers – in our make-up, the right number (though it is nonsensical that there are, within one, almost as many paralegal benchers as solicitor benchers (for two years it was a tie)). There are 40 elected lawyer benchers – the right number (although we need a far better balance between barristers and solicitors). There are 35 ex officios, yes, but only 7 or 8 show up with regularity – a beneficial number. Many of the others are beneficial too when the need arises, saving the Society considerable expense from having to bring in non-elected newbies who have no background in legal services delivery governance.

    Another thing that many shrinkers talk about is greater democracy. How does reducing the number of voting participants enhance democracy? No one knows.

    Another is improving policy-making. How does reducing the number of minds, perspectives, and practice, ethnic, age, religious and orientation backgrounds brought to bear on a policy improve policy-making? In other words, how does dumbing down Convocation make it more intelligent? No one can say.

    The shrinkers then say that the intelligence gaps will be filled with greater (and costly) consultations with the profession. How is that in the public interest?? Benchers are required to regulate in the public interest; the consultees are mostly concerned with the profession’s, or their own, interests. How does consulting with self-interested people who have not spent a fraction of the time examining an issue as have the benchers add to the intelligence of the ultimate policy outcome?

    I have taken part in several consultations. Only a few have been worth the time and effort. The governance ones in 2009 were a joke, nothing more than an exercise in manufacturing consent among the unknowledgeable to then use as support for dumb reforms at the expense of better ones.

    Another consultation is ongoing. It has to do with whether lawyers should continue to be allowed to take incentive payments from companies to choose their lousy products over their competitors’ lousy products in circumstances where the offering of such incentives is banned in the USA where the head offices of the Canadian incentive-offering branches are located. I make this fearless prediction: most of the lawyers accepting the incentives will argue strenuously for their retention. Are the incentives in the public interest? Not a flaming chance. Not a cold ember’s chance. No chance at all. So why bother with the consultation? Search me.

    Far better is a public interest body tasked with investigating in detail this and a myriad other issues affecting the many very different niches of legal services delivery (including new, algorithmic ones), and which body is large enough to do all the many, many jobs with the necessary dedication, time, and resources. In other words, the current version of Convocation.

    The shrinkers say that, with so many benchers (in their view), it is hard for everyone to be heard. Nonsense. Despite the explosion in the number of LSO members (24,000 to 51,000 plus thousands of paralegals in 23 years), the number of elected lawyer benchers has remained the same. The number of lifers taking part has also remained constant. The number of lay benchers went from 5 to 8, and 5 paralegal benchers were added. Although the population of lawyers has risen by more than 50%, the size of Convocation has risen by only 15%, none of them lawyers.

    It is as easy to be heard today as it was in 1995 except for three factors unrelated to size. In 1995 and for years after, Convocation sat all day. A tremendous amount got done and everyone who needed to speak, spoke. Now we finish at 1 pm or earlier. It is not the number of benchers that is the problem; it is the time allotted to the debate. Further, thanks to the presence of cameras, there is more grandstanding than before (not a lot but still more), and that eats up time. Further, lifers (this one anyway) would have less need to talk in Convocation if allowed to serve on committees where most of the hard, and most effective, work is done prior to Convocation. From the time life benchers were created decades ago, only one Treasurer (with no mandate to do so) ever denied lifers that opportunity. The current Treasurer has sensibly restored the opportunity.

    At times, especially since the governance deforms of 2009, we get less substantive work done than before, but that’s been mostly a function of leadership, not of size. We have spent inordinate amounts of time putting unnecessary cures on conditions that had already cured themselves, and pretending to enhance access to justice by changing our name (losing 220 years of branded independence from government in the process) while doing little about the Ruinous Time and Cost of Litigation. But nothing is perfect.

    Shrinking Convocation would not enhance a blessed thing but would rob Convocation of brainpower, perspectives, diversity, experience, and memory. It would reduce diversity both human and practice-based. And, to the great extent that the work now done by benchers would have to be done by others, it would add greatly to the cost of doing it.

    Dean Dodek also advocates for far greater government oversight of the legal profession. No! No! A thousand times NO! The fragile independence of the legal profession was hard-won over centuries. We are living in an historical blink of an eye of peace and complacency, but, given human nature and unexpected occurrences, it does not take that much to upset it. Germany, before World War One, had the highest level of education and the lowest rate of crime in all of Europe, North America and the Commonwealth. Think about what that educated, law-abiding society did over the next three decades. Think about it long and hard.

    Can we have tyranny in Canada? Trudeau prattles on about tolerance and diversity, but then refuses summer job funding to any group that does not share exactly his personal view on a woman’s right to choose. I share Trudeau’s view that women have the right to choose. I do not share his tyrannical diktat that law-abiding taxpayers who incline to a different view should be denied access to taxed funds for summer jobs that have nothing (or nothing effective) to do with that right. As bencher Galati’s father (who was nearly executed twice by Mussolini’s government) pointed out when he cuffed young Rocco’s ears for saying that tyranny could not happen here, tyranny does not pounce all of a sudden; it sneaks in on little cat feet over time.

    The legal profession, far more than any other (though free journalism has a very important role to play), keeps the Government, with its bottomless power and resources, at bay and mostly honest. Other than a small, and I say valuable, contingent of appointed lay benchers, the profession should be regulated by a sizeable majority of elected, not appointed, benchers.

    Despite what people who have never been benchers say, our profession must remain self-regulated. The interests of the public are very well-served by having within Convocation a small but valuable group of lay benchers and by having a statutory requirement that benchers regulate in the public interest. In my 23 years there, the lay benchers have been very effective reminders of, and advocates for, the public interest, and virtually all elected benchers have taken their public mandate seriously. Indeed, the few benchers who persisted in believing that they are there “only for my constituency” have had practically zero influence on Convocation’s ultimate policy-making.

    Benchers well recognize that the groups who advocate for the profession are the CBA, OBA, FOLA, and the many niche groups such as the Family Lawyers Association. Benchers well recognize that they regulate in the public interest.
    Yes, self-regulation has been lost in some other jurisdictions. That is their tragedy. What Dean Dodek does not include in his article is why it was lost. In Australia, it was lost because of an outrageous discipline case that the benchers badly bungled and because of a myopic and endlessly harmful decision by the government to weaken the legal profession by allowing non-lawyers to own law firms. In England, it was lost because they had no equivalent of a CBA/OBA/FOLA and because an accountant wrote a report to allow ABS, which greatly benefited the accounting profession and dovetailed with the government’s instinct to weaken the legal profession.

    I can think of many countries that do not allow self-regulation of the legal profession: China, Iran, Nigeria, North Korea, Saudi Arabia, Venezuela, Zaire, to name a few.

    It is critical to note that the mandate of the benchers is to regulate in the “public” interest, not the “government” interest. To ensure the survival of that vital distinction requires self-regulation by the legal profession, not regulation over-run with government appointees. There are commentators, found disproportionately on the left or on the public payroll, who believe that the public interest and the government interest are the same. Nothing could be further from the truth.

    Nothing would be worse for the long-term health of a free and democratic society than to have the independence of the legal profession compromised by over-bearing regulation by Government. Nothing. Adam, please do not advocate for something so deleterious to the long-term health of Canadian society as the Government, in its self-interest, neutering the legal profession over time by becoming its de facto regulator through a preponderance of beholden appointees.

    Most of the critics of Convocation or the size of Convocation have never been benchers and may be forgiven for not understanding or for discounting what Convocation and its members do. Some of the critics are benchers themselves, but they simply remind me of Churchill’s trenchant observation, in paraphrase: “The worst of our enemies are not from without; they are from within.”

    Let us not have enemies inside or out. Let us be friends. For the public good.

  12. Bradley writes: “Another consultation is ongoing. It has to do with whether lawyers should continue to be allowed to take incentive payments from companies to choose their lousy products over their competitors’ lousy products in circumstances where the offering of such incentives is banned in the USA where the head offices of the Canadian incentive-offering branches are located. I make this fearless prediction: most of the lawyers accepting the incentives will argue strenuously for their retention. Are the incentives in the public interest? Not a flaming chance. Not a cold ember’s chance. No chance at all. So why bother with the consultation? Search me.”

    Wow. I am reminded of the proverb about the man given enough rope.

  13. Tim, what rope? And whose rope?

    Not to get side-tracked from governance issues but someone needs to make the case that lawyers being paid by title insurers to choose their products is in the clients’ interests. I doubt it is a case that can be made. Maybe it is an argument that can be won politically, but certainly not intellectually.

    One of the arguments stressed in favour of the incentives is that the lawyer performs a service for the title insurer when completing the application and the title insurer desires deeply to pay for that service. Really? Wouldn’t they rather get that work done by the lawyer for free? What’s in it for the payor title insurer? What is the incentive actually for? Is it for the application work (which is done by the secretary in one to five minutes such that a $100 inducement works out to a rate of $6,000 to $1,200 an hour) or is it for choosing their product over a competitor’s? If the latter, is the lawyer choosing their product because the coverage is superior or because the incentive is superior? To get an answer to that, ask the lawyer to explain exactly what each and every title insurer’s policy covers and does not cover and what circumstances can apply to any of the various possible claims. If the lawyer cannot do that, then how do they know whether they are selling the client the best coverage? Could it be that the incentive is the primary motivating factor? And how is that in the client’s interest? Some lawyers pass the incentive on to the client. What does that do except produce the true cost of the coverage, in which case why have the incentive in the first place??

    In any event, lawyers do a lot more work for the mortgage lender on the file but the lenders do not pay the lawyers one penny. The lawyer’s services for the mortgage work are paid by the client, and the same should apply to the title insurance.

    I never have and never will accept incentives from a title insurer or from a lender or from anyone else on any file. To do so divides the lawyer’s loyalty partly away from the client, and the loyalty should be 100% to the client.

    I describe title insurance as lousy because it is. It badly harms the use of very useful documents – surveys – by replacing them with highly problematic documents called title insurance policies, documents that are written in turgid insurance-ese and feature exceptions and exemptions and exceptions within exemptions. Have you ever read the policies all the way through?

    Most properties had perfectly good surveys. Only a very few transactions a year needed new surveys. The total cost to the public of pervasive title insurance is vastly higher than the cost of the few new surveys that were needed. In my typical practice, I calculate that the cost to my client base of title insurance over the needed new surveys is about 14 times higher – a staggering amount. In other words, my client base is paying about 14 times more NOT to have surveys even though surveys are far more useful than title insurance.

    Title insurance drives up the cost of municipal services as municipalities take steps to replace the lost tax certificate and building report revenues. In Ottawa, it is partly in the form of a change-of-ownership fee that did not exist until lawyers stopped ordering tax certificates following the announcement that the title insurers would cover tax arrears. Of course, more and more lawyers are resuming ordering tax certificates because of the headaches caused by not ordering them, resulting in the client paying, not only the portion of the title insurance premium allotted to tax arrears payments, but also for the tax certificate which renders the tax arrears coverage useless, and also for the new change-of-ownership fee!! That is how title insurance often works: it appears to reduce the cost of something while actually costing the public far more than the previous system.

    If you notify the title insurer of a title problem, they exempt it from the coverage. I have had title insurance minions tell me that I should not have found the title problem as then they would have covered it. In other words, the client gets more coverage if the lawyer fails to do his job. What other industry encourages professionals not to do their jobs?

    Dear doctor, in order to maintain your insurance coverage, please do not find out what is wrong with the patient. If you do find out what is wrong, we will not cover you. And here is an incentive to miss the problem.

    Is that a doctor you want to go to?

  14. Bradley I have done a little more than read the policies. Right on Adam’s point perhaps you can let readers know how many of the Benchers elected, and re-elected, as part of a “slate” approved by the Ontario Real Estate Lawyer’s Association resigned from ORELA upon becoming a Bencher. How many ORELA approved candidates sit today as Life or Ex-Officio Benchers? Wasn’t an ORELA approved Bencher elected Treasurer?

  15. Tim, What does ORELA have to do with anything? It has not existed as a factor for over 20 years. I do not even know if its founder has even kept the name alive. Why pick on ORELA? What about all the other practice area associations that get behind candidates from their practice areas? Should every litigator bencher resign from OTLA? The FLA? The CLA? Should women benchers have to resign from the WLA? When Don Thomson was co-chair with me of the Real Estate Committee for five years, should he have resigned from the OBA? What about big firm candidates who can count on lots of votes from the big firms? Should big firm benchers be required to resign from their firms? Are you saying that every bencher must resign from any group they belong to upon election? Since we make decisions concerning CPD, should benchers never attend the sessions? We would end up with only sole practitioner benchers cut off from their practice associations. Not a governance model I would endorse.

    I say that benchers should continue to belong to virtually every group they belong to as that helps them stay in touch with the issues. The only thing that matters is that they then govern in the public interest, and they do, if not perfectly then awfully darn well. Remember, nothing and no one is perfect. Replacing elected lawyer benchers with government appointees would be far worse, far farther from perfect than any Convocation has ever been.

    As for Susan Elliott who became Treasurer in 1995, she did benefit from an influx of solicitors that year – the only term in the past many decades (probably even in the last 100 years) when solicitors were elected at anywhere close to their representation in the profession. She was not “approved” by ORELA. She earned her election the old-fashioned way: she impressed everybody, even the ones who did not vote for her. Remember that her opponent was David Scott, one of the finest civil litigators this province has ever produced. Although David lost, he remained held in the highest esteem by everyone, including those who voted for Susan. Susan went on to be one of the very best Treasurers in the history of the Law Society. She led a tremendous turnaround. For example, under her leadership, we set in motion the steps that resulted, in just 36 months, in a 48% reduction in (y)our fees and levies. We went from the angriest electorate in our history to a gleefully happy electorate with the result that all the 1995 incumbents who ran in 1999 were re-elected. We still had a 30% rate of renewal!

  16. Dean Dodek refers to “Convocation” as “the archaic name for what is supposed to be a Board of Directors at the LSO”.

    I trust that it is now apparent from the essay above that Convocation at the LSO is much more than a regular board of directors. The word “Convocation” suits it much better than “board of directors”. Further, “convocation” is not archaic. It is in current use, never having gone out of use in the 220 years of the Society’s existence. It is also used in other contexts such as graduation ceremonies and gatherings of eagles or priests.

    With the greatest respect to Adam who is a great friend of a great friend of mine, seeking to shrink the use of vocabulary is not only unnecessary and counter-productive, it is symptomatic of the move to dumb down society that has afflicted society ever since the teachers unions (motto “More pay, less teaching”) gained the upper hand over governments and the public .

    “Everybody gets a trophy” is a symptom of this invidious malaise. It is so much easier to hand out trophies than to teach kids how to cope with reversals and failures, or, better yet, how to regard failures as valuable learning experiences, or how to develop strength of character regardless of outcomes.

    Another symptom is the rise of the victim industry. Since everyone learns in childhood that they are entitled to trophies (and to pass) no matter how poorly they perform, they become entitled adults seeking to blame everyone and every thing other than themselves if their dreams do not come true in every detail regardless of effort or aptitude.

    Another symptom is the bloating up of law schools. It cannot be claimed that the standards have been maintained. For example, Ottawa U, which more than doubled in size several years ago, cannot claim that the sudden influx of 165 new students that year who would not have qualified the year before somehow were all tied with the previous year’s last admitted student. Ottawa U has maintained the new size every year since.

    The drop in standards is not limited to the law schools. Undergraduate marks have gone from 10% As in the decades before the 90s (80s?) to 38% As since then. Factor in the B+ marks and a B is now a below average undergraduate mark. The University of Leicester Law School takes Canadian law students who have B averages and no LSATs. Naturally, they all graduate and return to Canada where they are practically inevitably called to the bar.

    Maybe I’ve become cantankerous, but, well, yunno, him and me are going to class today irregardless of if its raining or maybe a movie. Gimme an A.

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