Requiring Diversity in Law Society Structures

The Law Society of Upper Canada Bencher Elections are currently underway, with voting concluding on April 30, 2015.

As with elections in society generally, bencher elections matter, and help determine the course and future of the legal profession. But lawyers, who fully understand the relationship between representatives and policies undertaken, have a lower voter turnout than the general public.

In 2014, the provincial elections in Ontario enjoyed a 52.1 per cent turnout, an increase following five successive drops in turnout and even a record low. Similarly, in the 2011 LSUC Bencher Election, voter turnout increased and reversed a long-term trend of decreased participation, but only rose to 37 per cent.

The legal profession is at a crossroads. The articling crisis and LPP Program, regulation of licensed paralegals, and the introduction of Alternative Business Structures (ABS), all have the potential to radically transform the future of law. The legal industry itself is in crisis, and without significant change there is concern we will lose our power to self-regulate entirely.

The challenge with the law society’s structure is that historically most benchers were entrenched and very difficult to remove. They represented the experience and the seniority of the bar, and hopefully the wisdom and insight. This stability though led to a perception that participation in these elections was largely futile, as the established incumbent benchers would invariably lead the pack beyond other candidates.

To complicate things further, those serving four terms received life-bencher status, and former treasurers and attorney generals enjoyed ex-officio bencher status. The unintended consequence of this was that convocation swelled to 83 members, which included 32 unelected benchers. In this bloated and encumbered structure, decision-making was obviously considerably more challenging.

In 2010, the law society amended By-Law 3 to impose term limits on benchers and end the life-bencher system. The moves were largely intended to encourage younger benchers to run, and hopefully be elected. The slight increase in turnout is in part attributed to an interest in the bar that new voices could be heard at convocation.

However, at the time of these amendments Jennifer Halajian stated,

If you look around this room, I’m all by myself. The vast majority of this room has three characteristics in common, and I’m not going to point out what they are but I bet you can guess. And they do not reflect the profession.

Gender diversity among benchers has improved. The law society indicates that in 2007 and 2011 nearly half of all the elected benchers were women. Diversity in other forms still struggles.

Halajian was herself called in 1999, meaning she has been practicing law for over 15 years. Paul Schabas, who is over 55, indicated that he was what convocation considers to be a “young” lawyer. The problem here is that the majority of the issues facing the profession identified above largely affect lawyers much younger than that.

Established members of the bar, who are considering retirement or winding up their practice, simply do not have the same long-term views of the profession as younger members of the bar. Their only exposure to the general life issues facing millennials are through their children, or possibly their grandchildren. Younger lawyers repeatedly express disinterest in these elections because there is such a low likelihood of success for newer candidates.

Other legal organizations ensure these voices are heard in their governance structures. The Ontario Bar Association (OBA), in addition to a strong commitment to gender diversity, geographic representation and visible minority participation, reserves a seat on the Board of Directors for a representative from the Young Lawyers section.

This commitment is not always comfortable, as the interests and concerns of these younger lawyers frequently can be at odds of the profession as a whole. But these perspectives are essential in ensuring that the policies created today fully consider the implications on the lawyers of tomorrow. For this reason, past executive participation in these equity-oriented organizations is usually one of the best indicators for me that a bencher candidate values these perspectives.

Rather than explicitly endorse younger bencher candidates here, I encourage all members of the bar to vote for benchers who are willing to restructure the law society in such a way as to ensure there are younger voices of the profession heard at convocation.

This diversity takes priority even above any of the issues facing the profession. This diversity should not be optional or an aspirational goal.

Without these voices the issues facing the profession is unlikely to be properly explored and debated. This needs to happen immediately. This needs to happen in the 2015 Bencher Election.