The Cream of the Crop? King’s Counsel and Certified Specialists in Ontario

So, you need a lawyer. Who are you going to call? There are more than 50,000 to choose from in Ontario. Each one is officially licensed to handle any and all legal needs, but most are not competent to help with your particular need, and an even smaller number would be ideal for you. It can be very difficult to sort the wheat from the chaff, especially if you haven’t worked with lawyers in the past.

If a would-be client is confused by the options, and doesn’t have someone knowledgeable they can ask, it would be sensible to look at official designations. And Ontario, for the time being, has not one but two official designations that purport to mark out especially excellent lawyers.

The Specialists are In

The Law Society of Ontario’s Certified Specialist Program, established in 1986, allows about 800 Ontario lawyers to advertise themselves as specialists in one of 17 areas. To do so, these individuals had to prove to the Law Society’s satisfaction that they have mastered, and practiced consistently, in a niche such as family, immigration, or estate law.

And yet in May 2022 Convocation (the LSO’S elected board of governors) voted to abolish all of the certified specialist designations except the one for Indigenous Legal Issues. After some significant resistance, including from the Certified Specialists themselves confronting the abolition of a distinction they felt they had earned, this was put on hold in September 2022. A subcommittee is seeking feedback from the public and will report back to Convocation later this year about whether to continue, abolish, or reform the Program.

Counsel to the King

Even if the LSO’s list of Certified Specialists does disappear, the Office of the Attorney General has chipped in its own list of 91 elite lawyers. The new King’s Counsel designation was born without warning or fanfare in a press release on Friday June 30. The presser was issued on the eve of the Canada Day long weekend, which is the best possible moment to minimize media attention. There was no oral announcement, either inside or outside the Legislature.

Why would a government that has identified 91 especially wonderful lawyers, and bequeathed a noble honour upon them in order to celebrate the coronation of King Charles III, not want to make a bigger public splash? Those scrutinizing the list of 91 quickly found out why. While it contained a few who have genuinely done extraordinary things, the majority were distinguished only by their connections with the governing Progressive Conservative Party of Ontario. Every lawyer in Cabinet was included, most lawyer MPPs in the government caucus were included, and so were a number of the government’s most prominent political allies and appointees.

A Farce for Lawyers

For Ontario lawyers and insiders, the King’s Counsel designation is simply a joke. It’s amusing that such a grand-sounding title — imagine being a lawyer who counsels the King himself! — could have been created in this way. There is no evidence of any structured process to identify these worthies. Questioned a week later, Premier Doug Ford said he had never seen or approved the list. If this is true, then it must have been approved by the Attorney General, or someone in the AG’s office.

Someone in that office probably tried to think of and write down all of the lawyers who are government MPPs, political staffers, or party insiders. Maybe they sent out a few email inquiries to allies, asking who among the party faithful might feel tickled to add a KC to their business cards and website bio blurb. It wouldn’t have taken more than an afternoon or two. For lipstick on the pig, a few non-politically-aligned eminences were added to the list.

It’s amusing to think of the Attorney General deciding to confer such a title upon himself. It’s not quite “Lord of All the Beasts of the Earth and the Fishes of the Seas,” as Ugandan dictator Idi Amin once dubbed himself, but it’s a gesture in the same direction. It’s funny that this was presented as a way to honour the coronation of the new King, when putting his name on something so old-fashioned and malodorous can only undermine the Crown’s reputation in Canada.

Caroline Mulroney simply had to be included on the list as a Cabinet minister and Tory blue-blood. However, she had never actually been called to the bar despite having served as AG herself. It would have been a bit too much to confer the title King’s Counsel on someone not even allowed to practice law in Ontario. And so, it was arranged for Mulroney to be called to the bar “administratively,” without having to take any tedious bar exams, pay any fees, or even swear an oath at Roy Thompson Hall. This happened just three days before she was elevated to the august ranks of KC.

A Tragedy for Clients

But this is a tragedy, not a farce, for the clients whom these lawyers may go on to solicit. For inexperienced people who need legal help, choosing the right lawyer can be very difficult. Well-connected people can get high-quality referrals, but the average person phones the name they know or searches on Google. If this were not the case, then personal injury, family, and criminal defence firms wouldn’t spend the millions they do on advertising.

For a lawyer seeking to attract inexperienced clients, a King’s Counsel designation would be manna from heaven. It’s an official recognition from the government which seems to suggest you are better than other lawyers. The fact that a few genuinely elite, non-politically-aligned names were put on the list add lustre, because we are judged by the company we keep. Prospective clients can be truly told that Joe Shmoe, who worked in politics before hanging out his shingle, is “King’s Counsel, just like Marie Henein.”

Prospective clients in Commonwealth countries with genuinely meritocratic King’s Counsel designations are even more likely to be duped by Ontario’s phony imitation. In the UK, King’s Counsel designations are apolitical and objective. They are made on the basis of recommendations from an independent panel of lawyers, somewhat like the panels that recommend judicial appointments in Canada. An Ontario KC who practices in England, or seeks to attract clients from England, will be in a good position to attract clients who take it as a mark of quality but don’t know the embarrassing truth about how such things are done in Ontario.

There is, of course, one class of client for whom KC will be a helpful and meaningful sign of quality. Those retaining lawyers to lobby this provincial government will know that, apart from the apolitical minority on the list, these are the government’s very best friends in the Ontario bar. That is helpful information, especially given how receptive this particular government is to lobbying.

The Law Society should preserve the Certified Specialist Program, after reforming it to ensure that it graces more of the best lawyers, and none who are mediocre. As for King’s Counsel, there is a compelling argument for an objective, meritocratic designation, open to the entire profession. However, I think it will need to have some name other than “King’s Counsel.” That phrase has been permanently poisoned in Ontario.