Next month’s Bencher elections at the Law Society of Ontario likely will mark a turning point in the regulation of legal services in Canada.
As you’ve probably heard, this is the first Bencher election in Canada to feature rival factions of candidates seeking office, each with political and governance views deeply hostile to the other. I have no idea what the outcome will be; but I believe the damage to the Bencher election model has already been done. One way or another, major (and overdue) changes are coming to the governance of Canadian legal regulators.
The sight of lawyers and paralegals joining Bencher “slates” or “coalitions” with pre-set policy positions, aggressively competing against each other for votes, is in my view repugnant. But it’s also the inevitable result of the original sin of Canadian legal regulation: the election of lawyers by other lawyers to govern their own regulatory body.
Most Canadians would be dismayed to learn that members of the legal profession constitute the vast majority of directors of the profession’s regulators. They would be further appalled that these lawyers are directly elected by other lawyers in public campaigns, many of which are premised on “representing lawyers,” “speaking out for our region,” “standing up for sole practitioners,” and so on.
What confidence can the public have that its interests drive these directors’ decisions? Consider the provision of legal services by people other than lawyers. With few exceptions, Convocations across Canada have overwhelmingly opposed authorizing non-lawyer providers to help the millions of people who can’t access justice.
Do we seriously think this opposition, led by elected lawyer benchers, is not fundamentally protectionist? Would a board of directors chosen from outside the profession really believe such bans serve the public interest?
Put the shoes on our own feet. Imagine if the members of the Canadian Association of Petroleum Producers competed among themselves to be elected directors of the Canada Energy Board, where they then constituted a super-majority of the regulator’s decision-makers. How much confidence would you have that the NEB would act in the public interest rather than industry’s? In the same way, Bencher elections cannot help but undermine regulators’ legitimacy in the eyes of the public.
A similar situation faced the British Columbia government several years ago with the province’s College of Dental Surgeons, where a governance crisis prompted a scathing 2018 report by British governance expert Harry Cayton that, in turn, led to a wholesale reform of all provincial health-care regulation.
Cayton subsequently was retained by the Law Society of BC to review that regulator’s governance, and his report in 2021 made several trenchant observations, including:
- “Despite being a regulatory authority, the Law Society remains fundamentally a membership-run association. The members elect, and do so frequently, the substantial majority of the Benchers who govern them.”
- “The substantial majority of policy issues discussed by Benchers relate to professional interests not to the public interest. … The Society’s active responsiveness to the profession is in stark contrast with its lack of engagement with the public or legal clients.”
- “It is significant that the lawyers who are regulated by the Society are referred to as ‘members,’ not as registrants or licensees. Indeed, this regulator is a society, not a college or a council.”
BC’s law society is unique insofar as lawyers may (and frequently do) attend its AGM to bring forward various issues and cast votes whose results constitute binding directions to Convocation — a shocking breach of regulatory independence that many BC lawyers take for granted. But almost all law societies, governed by lawyers elected by those whom the governors regulate, would answer to Cayton’s assessments above.
This is unsustainable. “The direction of reform in regulation of professions is clear across numerous jurisdictions,” Cayton wrote to the LSBC. “Boards are being reduced in size, elections are being replaced with appointment on merit, [and] the proportion of public members is being increased to half or more.”
When the BC government first announced its intention to pursue health-care regulation reform in 2020, I gave a presentation to the annual meeting of the Federation of Law Societies of Canada in which I warned: This is not going to stop with health professionals. I advised law societies to reach out to their provincial and territorial attorneys-general and start conversations about regulatory reform that would prioritize the public interest while retaining lawyers’ independence from the state — before governments moved in that direction unilaterally.
Last fall, BC’s Ministry of the Attorney General did just that, releasing an “Intentions Paper” that set forth proposals for a new single regulator of all legal services in the province. The paper recommended that the new regulator be governed by a board composed of a statutory maximum number of directors,
- some elected by “licensees” (note: not “members” or “lawyers”),
- some appointed by government, and
- some appointed by the other members of the board “in accordance with a fair, transparent, accountable and independent nomination process.”
The Intentions Paper took pains to defend the importance of lawyers’ independence. But while it assured readers that government appointees would not form a majority of directors, it did not say that lawyers — elected or otherwise — would constitute a majority either.
The Law Society of BC strenuously opposes the possibility that lawyers would not constitute a regulatory board majority, and if the government pursues this plan, I can see a serious clash coming in this regard. I make no predictions about how such a clash would end. But I will say that the legal profession must prepare itself, sooner or later, for major changes in how the legal services sector — which includes, but does not solely constitute, the legal profession — is regulated and governed.
I would hope that, in its better moments, the profession would support such changes. After all, “voter turnout” in Bencher elections across Canada has been dropping for years — barely 30% of licensed legal services providers bothered to vote in the 2019 Ontario Bencher election, the latest in a six-election period of turnout decline. That should tell us something about how vital most lawyers consider this task.
In my ideal world, there would be no Bencher elections at all. I simply can’t see how the public interest is served or public confidence in legal services (which is already worryingly low) can be sustained when lawyers elect others lawyers to regulate them. But I also recognize that wholesale revocation of this longstanding custom would be very difficult to achieve.
Realistically, therefore, the better way forward would be to adopt the approach of the BC Intentions Paper. Under a reformed governance structure, a legal regulator’s 13-member board of directors could include, say:
- Five positions held by licensees elected by other licensees;
- Five positions held by appointees selected by government; and
- Three positions held by other directors (some licensees, some not) selected by the other two sets of directors to meet particular competence or expertise requirements.
This way, neither the regulated profession nor the government would effectively control the board of directors. In keeping with the direction of other regulatory reforms worldwide, the board would also be smaller and its mandate would be explicitly reoriented towards (in the words of the BC Intentions Paper) “promoting and protecting the public interest” in legal services.
This proposal likely would be unacceptable to many lawyers (as the Comments section below surely will reflect). But let me ask this: How well is the public interest in legal services being served now? Considering how the justice system is overburdened and in disrepair, with lawyers’ services unavailable to all but a wealthy minority and with the governance fiasco now unfolding in Ontario, the foregoing proposal might be as good a compromise as the legal profession can expect at this point.
Many lawyers and Benchers seem to forget that provincial and territorial legislatures created every law society in the country, and they can reinvent them with the stroke of a pen if they like. The case for reform has now been made, both in principle and (through the Ontario Bencher elections) in practice. Expect governments to move on it soon — with, or without, the legal profession’s involvement.