A University of Windsor law professor is calling on the Law Society of Upper Canada to change its bencher election rules with the aim of boosting the number of early-career lawyers at Convocation.
“The gaping hole in Convocation is the lack of representation for early-career lawyers,” wrote Noel Semple in a paper that’s still in the draft stage but recently became available online. “Just as the lawyers of each region have the right to elect candidates from among themselves, lawyers in each five-year career stage segment should be given the right to select two representatives to Convocation.”
The paper, which looks at the diversity of law society benchers elected since 1999, notes that by the time the 2015 election had ended, women and racialized people were present among elected benchers in rough proportion to their share of Ontario’s legal profession. That has been true of women since the 2007 election, according to the study. In fact, for most of the time since that election, women have had somewhat disproportionately higher numbers of benchers, a graph included in the study shows. For racialized candidates, 2015 was a
“breakthrough” election. Racialized members now comprise 22.5 per cent of the benchers. That’s more than their 17.3-per-cent proportion among Ontario lawyers, according to the paper.
In other ways, Convocation remains unrepresentative, the study suggests. For example, as of this year’s election, Ontario firms classified in the study as large (with 20 or more lawyers) have 22.9 per cent of the province’s lawyers but 35 per cent of the benchers.
But the most severe underrepresentation, says Semple, is among early-career lawyers. Lawyers practising for less than 15 years, for example, make up 45 per cent of all of the lawyers in the province, but Convocation includes only two benchers in that category. Lawyers in their first 10 years of practice make up at least a quarter of Ontario lawyers, but none of them sits in Convocation.
To redress the imbalance, Semple proposes a reform to law society election rules that’s in some ways similar to changes introduced in 1999 to ensure there was adequate representation at Convocation from Ontario’s regions. Just as the candidate who wins the most votes from voters in his or her region gets a seat as one of eight regional benchers, those who receive the most votes from others in their own five-year career stage would sit as benchers representing that group. There should be seven career stages and two benchers for each one with one member from Toronto and the other from outside the city, says Semple. The reform, he says, wouldn’t mean an increase in the number of benchers.
“This modest reform is arguably the last missing piece of the diversity puzzle,” he wrote in his paper.
“Introducing it now will help ensure that the law society can continue to confront its many challenges and opportunities as a robust and vital public interest regulator.”
In addition to bringing more diverse voices to Convocation, reforming the rules in this way, according to Semple, would likely boost voter turnout, especially among new lawyers.
“If you tell new lawyers, ‘Look, you have an opportunity to select one of your own to represent your perspective in Convocation,’ I think that’s really powerful, more powerful than just picking the person from that group who got the most votes overall,” he says.
Semple adds, however, that he’s not sure he’s happy with the draft paper’s use of the word “represent” if taken to suggest that benchers are there to represent other lawyers rather than the public. The real benefit to having more young lawyers at Convocation, he says, is that they may be able to “give a perspective on the public interest . . . that other career stage lawyers might not,” such as the distinct ethical questions that associates at law firms run into.
Some current benchers, while applauding the goal of widening representation at Convocation, question the practicality of Semple’s proposal. “I think the premise that we need a more diverse Convocation in several different ways is merited,” says Raj Anand, whose campaign for the 2015 election included calls for a more youthful Convocation. “I think we’re working toward that. And I don’t think the answer is to do nothing but I don’t think the answer is to create more quotas.”
The problem with creating constituencies within Convocation, says Anand, is that since there are so many diverse groups that have or have previously had low representation, it opens up the possibility of a virtually unlimited number of them. “Once you start creating seats, it’s difficult to know where to stop,” he says.
Anand would like to see more work on the election system, including, perhaps, looking into campaign spending limits. Still, the implementation of spending limits is likely to prove difficult since coming up with a way of precisely measuring expenditures — which could include, for example, time subsidies from law firms — isn’t easy, he says.
Bencher Malcolm Mercer agrees that while the goal of diversifying the perspectives and expertise of benchers is laudable, introducing more constituencies into Convocation could lead to ever-more calls for new ones.
“I think it becomes, once you start going down that road, very difficult to achieve, in a practical way, a system that works,” he says. “It could become an overly complicated system that won’t achieve what it’s designed to achieve.”
More importantly, he says, the people elected from a constituency may tend to think their role is to represent that constituency rather than the public as a whole.
“I’m concerned that his solution might tend to cause greater self-interested representation,” says Mercer.
Instead, Mercer favours a proposal to have independent appointments for some bencher positions, a suggestion that arose in the Canadian Bar Association’s report on the future of the legal profession last year.
Whatever the solution turns out to be, the public interest would benefit from having a Convocation that’s representative of the public itself, says Osgoode Hall Law School Prof. Trevor Farrow.
“Until we make law a profession and a process that is accessible to everyday Canadians and reflective of everyday Canadians, we will continue to increase the access to justice gap that exists and is growing in this country,” he says.
For more, see "Benchers ponder implications of LSUC vote."