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Self-regulation at stake in LSUC review

|Written By Robert Todd

The future of self-regulation hangs in the balance as the Law Society of Upper Canada ponders changes to its governance structure, say lawyers consulted through the initiative.

Earl Cherniak says it’s time for benchers to be subject to term limits - two four-year terms - and eliminate life bencher status.

“The real impetus behind any move to amend any governance structure by a self-regulating body is to ensure that it does continue to regulate itself,” says County and District Law Presidents’ Association chairman Randall Bocock.

“If legal service providers in Ontario and lawyers want to regulate themselves, then they have to have a governance structure that is understandable and comprehensible to the public, that is transparent, and also accountable. . . . The stake is simply that: does the profession want to be self-regulating?”

Bencher Tom Heintzman, chairman of the law society’s governance task force, says his group has wrapped up its consultations with groups of selected lawyers in cities throughout the province, as well as separate talks with legal organizations.

“The people who attended were really interested in this process; I’m not saying they all have a unanimous view about the law society, but I think they were very interested. And I think they were very appreciative of having been consulted,” says Heintzman. “I think the process was a very good one from that standpoint.”

The task force asked for feedback on the bencher election process, the size and nature of Convocation, and the separation of benchers as both adjudicators and regulators.

According to an earlier report to Convocation, specific questions included whether the size of Convocation should be cut, if term limits should be introduced for benchers, whether the treasurer should form an executive committee, and if life bencher status should be eliminated.

Heintzman says there are “a lot of opinions out there,” but declined to offer any comments on the content of any of the consultations.

“All of these issues are inter-related, so I’d rather sort of talk about them when we get around to our report, and we’ll see where we go,” he says. “Because there will be lots of opinion around the table, I’m sure.”

The task force will meet twice in June to “absorb what we’ve heard,” he says, adding he hopes to issue a report to Convocation by September.

Lerners LLP partner Earl Cherniak, who was a bencher from 1999 to 2007, took part in an April task force consultation session in Toronto. He says it’s time for benchers to be subject to term limits - two four-year terms - and life bencher status should be done away with.

“As long as appropriate steps can be taken to appoint qualified people to be able to sit on law society discipline matters, the institution of life benchers is probably no longer necessary, because it just makes the body way too big,” says Cherniak.

He notes that the main benefit of life benchers, who are unable to vote at Convocation, is their availability to sit on discipline panels, where they “perform a very valuable service.”

He suggests that people who have acted as benchers could automatically qualify to sit on discipline panels and continue to do that important work.

Cherniak also believes the treasurer should be able to form an executive committee, a body he says most organizations have.

“Every treasurer in effect forms his own ad hoc executive committee of those people who have been his principle advisors or close friends,” he says.

Term limits would ensure a larger turnover at Convocation, says Cherniak, while maintaining “a cadre of people” with experience. This view was part of the reason he chose not to seek re-election after his second term as a bencher, says Cherniak.

He says the stakes of the governance review are high for the profession.

“I believe that if the law society loses the ability to self-regulate it’ll be a very bad day for the public generally and for lawyers. Because the alternative is regulation by government, which I am dead against,” he says. “The law society must do, and must be seen to do, an independent job in the public interest. So having the appropriate governance is one of the ways to instil public confidence.”

Cherniak notes that the law society seems to go through the process of considering governance changes every four years, but change has been elusive.

“Generally speaking they go nowhere, in part because there are so many entrenched interests with the way it’s set up now with so many benchers who have been there for a very long time,” he says.

Bocock says CDLPA, which met with the LSUC task force, has undertaken a broad review of the law society’s governance structure, and is expected to submit its findings to the law society later this month.

“The issues obviously that we’ll be dealing with are professional representation versus lay representation on Convocation, the issues of the discipline function and how best that and efficiently that be dealt with, life benchers and past treasurers and those kinds of ex officio appointments, and also general transparency and openness of proceedings at the law society, and enhanced participation by the regulated - that is to say legal service providers - and the public,” says Bocock.

He agrees that the results of the governance review could determine the future of self-regulation.

He adds, “Self-regulation of the legal profession is a critical cornerstone of a long-standing tradition of the independence of the bar in a free and democratic society.

Without the bar regulating itself, it would have to be accountable to some arm of government. The minute a profession is accountable to some arm of government, then of course it’s no longer independent. The independence of the bar is a little different than other professions - it’s absolutely a fundamental cornerstone of democracy.”

Advocates’ Society president Peter Cronyn, who participated in the consultation process on behalf of his organization, credits the law society for undertaking the governance review. He declined to offer up the position taken by the Advocates’ Society, saying the meetings were intended to be private and he wants the committee to debate the issues on its own.

“I certainly felt like they took our comments seriously and thought they were helpful,” he says.

“We did recommend a number of things that we thought should be changed, and it’s our hope that we see those happen.”

Heintzman says the governance review is “extremely important,” but he does not believe that it alone will determine the future of self-regulation.

“The whole status of self-regulation is up for grabs at any time,” he says. “I think what you have to do at any time is say, ‘Now is a good time to make sure you’re as good as you can be, because some mistake or some incident is going to come along that’s going to cause everybody to scrutinize.’

And if you think now everything is perfect, something is going to happen. It happened in England, it happened in Australia. We can’t know what it will be, but something will come along to focus attention on the way we govern ourselves.”

Some benchers have expressed concern with the governance review process. At April Convocation, Bencher Bradley Wright suggested the unique nature of the law society’s role could make it difficult for members of the profession to offer useful thoughts on improving its governance structure. “We’re not a legislature; we’re not a private corporation,” Wright said at the time.

Life bencher Ross Murray urged Convocation to  fully debate the matter before going to the profession for consultation. Some benchers also pointed out that after sitting at Convocation they realized how little they previously knew about their role.

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