Bad Ballots: Down With Direct Democracy in Law Society Governance

At the LSBC’s AGM tomorrow, several member resolutions will be up for a vote. Among them is a controversial resolution (Resolution 3) submitted by two BC lawyers that calls for changes to certain language in the LSBC’s Indigenous Intercultural Course. The language at issue references an unmarked burial site at the former Kamloops Indian Residential School. Various legal organizations have condemned Resolution 3 as being, among other things, “alarming Residential School denialism”, “an attack on the principles of Truth and Reconciliation”, an “insidious attempt to distort history” and as “undermin[ing] engagement with Indigenous communities”.

Resolution 3 follows in the footsteps of other controversial resolutions put forward by Canadian lawyers at law society AGMs or special meetings in the last few years. For example, in 2023, 50 Alberta lawyers petitioned for a special meeting of the membership to vote on a resolution to repeal the benchers’ authority to mandate CPD requirements. As I’ve written previously in Slaw, this vote “was largely understood as a de facto referendum on the Law Society of Alberta mandating that its lawyers undertake an Indigenous Cultural Competency Education program”. Two year earlier, in 2021, two BC lawyers brought a resolution at the LSBC AGM to open debate on court directives requiring lawyers and parties to proactively identify their titles and pronouns. Both of these lawyer-initiated resolutions attracted significant attention in lawyer trade publications and also received coverage in the mainstream media.

Over the last two decades, there have also been lawyer-initiated resolutions relating to a wide variety of other matters, including climate change (LSBC 2022), the licensing of paralegals (LSBC 2018), what the law society in Ontario should be called (LSO 2012), and whether lawyers should be called “licensees” in law society by-laws (LSO 2008).

In some jurisdictions, the law society itself can also bring matters to direct votes of the membership via referenda. A high-profile example of this happening occurred in 2014 when the LSBC held a referendum asking lawyers in the province to weigh in on the potential accreditation of a new law school at Trinity Western University (see here for more detail).

These sorts of direct democracy measures aren’t an entirely new phenomenon for Canadian law societies. Over 40 years ago in 1981, the then-divisive issue of adding lay benchers was put to a referendum in British Columbia. Also, not all issues raised in such processes have been contentious. For example, at the upcoming LSBC AGM, there are member resolutions in addition to Resolution 3 that have not attracted similar levels of attention from the legal community.

Notwithstanding their vintage and sometimes uncontroversial deployment, these sorts of direct democracy processes should be abolished in those jurisdictions where they are available. Lawyer-initiated resolutions and law society referenda have no good place in modern legal services regulation.

For one, direct democracy processes clash with the mandate of law societies. Law societies exist to serve the public interest. Given this reality, it is inappropriate to have mechanisms allowing lawyers to centre their own interests on the regulatory agenda or for law societies to seek out lawyer preferences via direct voting on referenda. As Professor (now Justice) Alice Woolley and I previously wrote:

Whatever the merits of referenda in democracies generally, they are in our view very hard to justify when a law society has a legal and ethical duty to one group (the public), but the referenda is only voted on by another group (lawyers) whose interests may conflict with the group to whom the duty is owed.

In his governance review of the LSBC, Harry Cayton reached a similar conclusion, observing that “these are governance arrangements you would expect to see in the structure of a Trades Union or political party rather than an oversight body accountable to the public.”

Additionally, and relatedly, direct democracy processes can harm public confidence in the legal profession and its regulation. In Cayton’s view, the case for direct democracy processes has not been helped by the fact that “few if any [of the recent member resolutions in British Columbia] have relevance to the public interest or to effective regulation but are concerned with the interests of lawyers.” To the extent that some lawyer-initiated resolutions are perceived as self-dealing or as being self-centred, law societies risk being seen as out of touch, protectionist, and clubby guilds rather than as modern professional regulators focused on protecting the public interest. Moreover, in cases where direct democracy initiatives challenge the dignity and rights of equity-seeking groups, the profession’s recognized commitments to equality and human rights protection risk being diminished in the public’s eye.

To be sure, direct democracy measures can (and have in some instances) more straightforwardly connect to the public interest. Take, for example, a member motion made at the 2011 LSN AGM raising concerns about a shortage of legal services available to the public in Nunavut. This motion ultimately led to the creation of an access to justice committee (see here for more detail). Couldn’t we just limit lawyer-initiated resolutions to those which most squarely advance the public interest? One problem with such a suggestion is that it is difficult to contemplate a workable way to impose such a limit. Surely law societies would only engender more controversy if they tried to aggressively gatekeep these processes.

In any event, even with more public interest-centric resolutions and referenda, direct democracy measures still situate lawyers, rather than the public, as “owners” of the law society (to paraphrase Cayton). The dynamic they create is inconsistent with what should be the focus of law societies – serving the public – and thereby imperil public confidence in the regulator. The fact of this dynamic is also why direct democracy processes are damaging even if they are not binding on the regulator. With unbinding processes, the message is still sent that lawyers, as a collective, are a privileged constituency. Notably, no law societies have processes that allow all members of the general public to advance resolutions at their AGMs or otherwise vote directly on policy matters. It is only lawyers who have been granted such opportunities.

Finally, direct democracy processes can also impose significant costs on the legal community. In the most high-profile cases, law societies and legal organizations find themselves needing to divert energy and resources from their usual work in order to respond publicly. In the most divisive cases, ideologically driven measures advanced by individual lawyers or small groups of lawyers can amplify conflict within the legal profession. These are not abstract intellectual exercises without real-world consequences.

It is a good thing for lawyers to be interested in legal services regulation. It is also good for law societies to consider lawyer perspectives when regulating. But lawyer-initiated resolutions and law society referenda are not good vehicles for either of these things. They conflict with law society public interest mandates, risk hurting public confidence in the legal profession, and can drain resources and strain collegiality within the profession. In jurisdictions where they are available, direct democracy processes should be abolished.