Bencher Elections – the Challenge to Self-Regulations Legitimacy
Prior to the election of Law Society of Upper Canada benchers on April 30, 2015, the Ontario Trial Lawyers’ Association posted on its website a list of benchers who opposed the introduction of Alternative Business Structures. The website stated: “OTLA urges all association members and other eligible licensed lawyer to vote for the following candidates opposed to ABS” (OTLA Bencher Election Voting Guide). At the time some commentators, including me, were quite critical of the OTLA for this approach (“ABS issue dominating bencher vote”)
In this column I want to expand on those criticisms. Not because I want to further criticize the OTLA. But rather because I think politicizing this election, and the focus on the single issue of ABS, creates some risks and concerns about the viability of our current regulatory model. Specifically can a regulatory system in which control rests[1] with elected lawyers be trusted to regulate in the public interest?
The focus on ABS highlights starkly the disjunct that can exist between the electoral interests of the legal profession and the public in whose interests law societies must regulate. While everyone who argues about ABS – for or against it – frames those arguments in terms of the public interest, the fact remains that the people most likely to be affected by the adoption of ABS are lawyers. Obviously other stakeholders are also affected – non-lawyer shareholders and those whose legal needs are met through ABS – but to a significant extent it is lawyers who bear the risks of adopting ABS and who stand to reap its rewards. And those risks and rewards exist independently of any effect on the public interest. Whether or not ABS increases the public’s access to justice and decreases the cost of legal services (good) or impairs the maintenance of lawyer-client confidentiality and heightens the risks of conflicts of interest (bad), is wholly distinct from whether lawyers will lose their jobs, law firms will close, lawyers will make enhanced profit or lawyers will be able to practice freed from the hassles of practice management.
A lawyer voting in a bencher election, or running as a bencher, is likely to be influenced as much by lawyer concerns as by those of the public interest. This is not an indictment of those lawyers. Human beings are always influenced by our own interests; even when we try not to be, our cognitive biases and weaknesses make true abandonment of self-interest impossible (as Malcolm Mercer discussed on SLAW, here). A lawyer voting or running may also use the public interest concerns simply for effective advocacy in relation to lawyer-focused concerns. And – worst of all – it will be impossible to know whether a lawyer voting or running for bencher is in fact motivated by lawyer-based concerns or public-based ones. That may mean that even a largely public-interest focused candidate or voter will appear as lawyer-interested.
Not all regulatory issues raise this concern. On questions of, for example, the maintenance of solicitor-client privilege, to a great extent the public interest and lawyer interests will be aligned. But with ABS the distinction between public interests and lawyer interests is significant, and making this the focus of the election, and encouraging people to vote on the basis of prospective bencher’s position on ABS, focuses attention on the difference between the interests of the regulators and those on whose behalf they are supposed to act. It has the potential to make the whole election as driven towards protection of lawyer concerns, rather than as attentive to who will do the best job of regulating in the public interest.
It creates other legitimacy problems as well. As students of administrative law know, administrative tribunals do not have the same standards for reasonable apprehension of bias as do courts. In some instances – e.g., elected municipal councilors – it may even be acceptable for the administrative decision-maker to have a “closed mind”, provided that closed mind is as a result of conviction rather than impropriety (Save Richmond Farmland Society v. Richmond [1990] 3 SCR 1213). But for the reasons just noted, elected benchers are very different from elected municipal councilors. Because the people whose interests municipal councilors serve – the residents of the municipality – are the same people who elect them. But the people whose interests benchers serve are not the same as those who elect them. Which makes a bencher having a closed mind problematic both legally and ethically. Because the bencher’s closed mind could result from a commitment to the interests of lawyers supported by an electoral outcome, not from a commitment to the interests of the public supported by an electoral outcome.
Further, the question of whether ABS is a good idea or a bad idea (and I am very much attracted to Malcolm Mercer’s “could be if done right” summary) is largely an empirical and practical question, not a philosophical one. To turn this issue into a moral benchmark – like the “Emily’s List” PAC used to help elect pro-choice democrats in the US – is to ensure that it cannot be considered in the way that it must be to satisfy the public interest. ABS isn’t decided based on a person’s values and beliefs. It’s something that may or may not be a desirable regulatory change based on available evidence and regulatory mechanisms for successfully implementing that change. Elected benchers need to assess it on that basis, and forcing them to declare a position prior to election – and the actual consideration of the issue as a regulator – is to ensure that the public interest will not be properly assessed, whatever the outcome.
An “OTLA List” election may also inhibit regulatory courage. With this precedent as a backdrop will an elected bencher be willing to take a stand unpopular with lawyers in an effort to protect the public interest? Or will she decline to do so because fully aware that such a stand will make her a target next time around.
Finally, and most importantly, focus on ABS detracts from the issues that people who are not lawyers actually care about. A google search for “alternative business structures Canada” revealed two stories in the first three pages of hits from non-lawyer publications. Yet in the last year the Toronto Star alone has had numerous stories in relation to the conduct and regulation of Ontario lawyers. Members of the public do care about effective lawyer regulation, and the issues of concern to them ought to be the focus when electing the benchers charged with protecting the public interest.
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[1]Although not entirely given Ontario’s reliance on life benchers and every jurisdiction’s appointment of lay benchers.
“Further, the question of whether ABS is a good idea or a bad idea … is largely an empirical and practical question, not a philosophical one.”
The opposition of philosophy to empiricism and practicality is a fallacy. The empirical and the practical are intrinsically philosophical. Aristotle held that there were three basic human activities in relation to the world: theoria, poiesis and praxis. In 2015, these still mean the ability (1) to hypothesize, (2) to facilitate and (3) to act. Eliminating the first part of by labeling it ‘philosophy,’ equates to leaping before looking.
OTLA’s communication strategy tells us that we are not past the first stage. If you read their communiqués, the say to us that improvement to access to justice has not been proven (indeed refuted, in large part, by the work of Kalajdzic and Robinson), and that the experience in other jurisdictions has created unwanted unethical and anti-consumer consequences. So proponents of ABS would like to rush the conversation into (2) and (3) before (1) has been completed.
Politicization is a necessary element of raising awareness of the fact that our profession does confront issues beyond the basic relationship of being taxed and governed. Without issue-based politics, lawyers will vote for messages like “I’ll fight to keep your fees low.” We all remember reading those campaign statements and this is still a problem. Those are the lawyers who want the law society out of their hair, and who treat the lawyer’s oath in the same way electricians and plumbers treat a licensing application.
OTLA is an advocacy group for its members’ self-interest. It has shot a lone arrow into the crowd, but the result of that is that some have reached out to catch it and others have run for cover. The resultant melee has been a profession-wide conversation about the nature of the profession qua trusted fiduciaries or qua “vendors” of services. The conversation then extends to the market for articling jobs because customers don’t pay for vendors to employ trainees; to the retention of women in private practice because hyper-commercialization is inimical to women in the law at various levels; to racialized lawyers because sameness is opposed to diversity. I appreciate that these are sweeping generalizations, but I cite them to illustrate the common strand of the opposition between commerce and professionalism that lies at the core of professional self-regulation. Advocacy of this nature may be targeted, but the targeting often leads to wider engagement about the reasons for expressing a message on the immediate issue.
Well said Alice. I for one have found this election particularly disturbing with more self serving protectionist proclamations than usual. In general I do not find there to have been an airing of the issues but rather an exercise in lawyer self interest that defeats the whole premise behind self governance. The system is ripe for reform. Either we can lead that reform or no doubt if we don’t it will be imposed. I had hoped that it might be possible for the profession for once to lead change rather than just be reactive but if anything this election and the manner in which issues are discussed simply reinforces the old. Unfortunately we are becoming more and more irrelevant to the public as we seek to protect what we think is ours.
Well, it’s a bit of an anti-establishment vote – Joe Groia, Rocco Galati elected in Toronto – and with a fair amount of diversity. By my not-very-careful count, I think 8 out of 40 are not white, and there are a lot of women (16 of 40) – the top 7 candidates outside Toronto were women, and the next four in line after the 20 elected in Toronto are women.
So the turnout was low (35%, a shade lower than last time), but that’s still a lot of people, and those who voted I guess had something to say and found themselves able to say it within the current voting structure.
I have not gone back to check if those elected were the ‘defend the profession’ folks or the ‘promote the public interest’ folks, but I suspect more of the latter. Malcolm Mercer, the champion of ABS, was re-elected, along with some opponents, so that debate will continue.
The LSUC publishes candidates’ positions on important public issues for the benefit of the public and the profession . Public discussion and advocacy about those statements is in the public interest. This has advanced inportant issues including those relating to diversity and A2J and exposed the flaws of ABS. The Slaw post appears to accept that ABS is in the public interest. However, there is no evidence that ABS helps A2J. Both Australia and the UK have significant A2J issues notwithstanding ABS. The international ABS giants would not doubt prefer that lawyers’ organisations “keep quiet” but it would not be in the public interest for Ontario lawyers to do so.
Hi Bob
I don’t think that Alice’s column suggests that debate about ABS is in any way a bad thing or that anyone should “keep quiet”.
Rather, the concern is an electoral strategy on an issue involving material self-interest which seeks to elect those who who support the position and defeat those who do not. That is a problem for self-regulation as Alice describes.
Of course, I know that this is not your approach and that you have supported vigorous debate and those with whom you disagree on this issue.
Hi Malcolm,
Respectfully I cannot agree that the ABS debate is about “self interest”, at least not on my part, nor many other OTLA members. It is about a concern for A2J and the attempt by proponents of ABS to characterize ABS as an A2J issue, rather than focusing the profession’s energy on the real sources of A2J gaps. These include the lack of Legal Aid funding, unnecessarily complex courtroom procedures and lack of judicial resources , among many others. Public discussion and endorsements of Candidates by legal organisations and individuals is a long standing and valuable practice in Bencher elections. The ABS issue raises very specific concerns about self-regulation of those delivering legal services – for example the introduction of ABS in the UK .”coincidently” coincided with the loss of self regulation.
Hi Bob,
I don’t impugn the motives of you or other OTLA members. Or ABS supporters. The problem though is that there is a clear disjunct between lawyer interests and the public interest on ABS. And no matter how much anyone says his or her concerns are public focused, the appearance will remain the same. So if an election becomes all about ABS it undermines the ability of people to believe that the election is driven towards identifying the people who will discharge the mandate of the LSUC, which is regulating in the public interest. And once that becomes the case, the argument for self-regulation is weakened.
ABS is a challenging issue. My own views are that, on the whole, it is a positive change. But it also poses some risks and its benefits are not certain. The argument here is not about whether ABS is a good idea or a bad idea. The argument is that there are other things that are more important, and making the election all about ABS makes it seem like an election about lawyer interests not the public’s. And that is where the problem for the legitimacy of self-regulation arises.
The OTLA can make its case. But this was a very bad way to make it.
The OTLA’s opposition to ABS reminds me of the Ontario Real Estate Lawyer’s Association opposition to title insurance. The continuing impact of ORELA’s self serving efforts constitute a massive challenge to the legitimacy of self-regulation by the LSUC.
Hi Alice,
But was the election “all about ABS”? It was a very important election – but not because of ABS . It was important because it, quite properly in my opinion, focused on issues relating to diversty and a desire by an emerging group of young, talented lawyers who reflect the demographics of the population of Ontario to be “at the table” in the public interest. This was the thrust of the discourse I saw on Twitter at #LSBencher – not a preoccupation with the #ABS issue. Fortunately, some of these new leaders were elected and others made an excellent showing and should run again in four years.
In response to your last sentence, I would have thought the complicated process of endorsements and cross-endorsements of candidates by almost all lawyers’ organisations , Law Associations and some large Toronto law firms and the effect of that process on who was or was not elected might be a more worthwhile focus of attention.
Hi Alice,
But was the election “all about ABS”? It was a very important election – but not because of ABS . It was important because it, quite properly in my opinion, focused on issues relating to diversty and a desire by an emerging group of young, talented lawyers who reflect the demographics of the population of Ontario to be “at the table” in the public interest. This was the thrust of the discourse I saw on Twitter at #LSBencher – not a preoccupation with the #ABS issue. Fortunately, some of these new leaders were elected and others made an excellent showing and should run again in four years.
In response to your last sentence, I would have thought the complicated process of endorsements and cross-endorsements of candidates by almost all lawyers’ organisations , Law Associations and some large Toronto law firms and the effect of that process on who was or was not elected might be a more worthwhile focus of attention.
The OTLA sought to make it all about ABS: it urged voters to vote on that basis. It is hopeful that the election didn’t end up being about that, but that a significant advocacy group tried to make it be is troubling in and of itself.
And I’m sure there are indeed many other troubling things on which I could comment. I can’t say in general I struggle for material.
John,
Reviewing the list of those elected and comparing it to their statements made in the LSUC’s election package and the Law Times candidates webpages leads me to believe that results skewed heavily towards an anti-ABS sentiment.
Based on my reading of the candidates positions, I sorted the those elected into four groups:
(1) anti-ABS message
(2) pro-ABS message
(3) more study needed
(4) no information on ABS position
The results:
Inside Toronto:
9 anti-ABS
2 pro-ABS
6 more study needed
3 no info
Outside Toronto:
8 anti-ABS
8 more study needed
4 no info
This follows EM’s comments:
The following chart shows the average vote by region for those on the OTLA anti-ABS list and those who are not. The net difference overall is 94 votes per candidate. There is a difference in the voting pattern between voters in Toronto and outside Ontario versus voters in Ontario but outside Ontario. But I think the strong ABS effect is fairly viewed as amounting to a few hundred voters out of 16,000 votes.
All candidates* OTLA Not Diff. Votes Effect
OTLA
Central East 181 140 42 1,129 3.7%
Central South 154 105 49 1,035 4.7%
Central West 166 144 22 1,154 1.9%
East 312 277 35 1,925 1.8%
North East 38 31 7 271 2.5%
North West 26 17 9 151 5.9%
Outside Ontario 83 96 -13 512 -2.5%
South West 123 94 29 924 3.1%
Toronto 1,194 1,279 -85 8,939 -1.0%
Total 2,277 2,183 94 16,040 0.6%
• OTLA endorsed the Treasurer but did not report her position as anti-ABS.
As all incumbents were re-elected (only about one-half of incumbents ran again, many being termed-out), it may be worth looking at the votes for non-incumbents. Here, the effect is somewhat greater with nearly 400 additional votes being enjoyed by non-incumbents on the OTLA list. But again, a small portion of 16,000 votes.
Non-Incumbents OTLA Not Diff. Votes Effect
Central East 169 115 54 1,129 4.8%
Central South 141 79 63 1,035 6.0%
Central West 155 115 40 1,154 3.5%
East 292 236 56 1,925 2.9%
North East 33 18 15 271 5.7%
North West 25 12 13 151 8.8%
Outside Ontario 75 79 -5 512 -0.9%
South West 108 64 44 924 4.8%
Toronto 1,002 917 86 8,939 1.0%
Total 2,001 1,635 366 16,040 2.3%
Looking at the votes for incumbents as follows, it appears that those on the OTLA anti-ABS list did somewhat less well.
Incumbents* OTLA Not Diff. Votes Effect
Central East 228 199 29 1,129 2.6%
Central South 202 170 32 1,035 3.1%
Central West 211 216 -5 1,154 -0.5%
East 390 378 13 1,925 0.7%
North East 55 63 -8 271 -3.0%
North West 29 30 0 151 -0.1%
Outside Ontario 115 136 -21 512 -4.1%
South West 179 168 11 924 1.1%
Toronto 1,931 2,166 -235 8,939 -2.6%
Total 3,339 3,525 -185 16,040 -1.2%
Based on this information, it seems that significant anti-ABS views may have motivated a few hundred voters.