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Stakes high for benchers

|Written By Robert Todd

Law Society of Upper Canada benchers have signalled concerns that the profession’s lack of knowledge about the institution could skew a consultation process on possible changes to its governance structure.

Governance task force chairman and Bencher Tom Heintzman says his group sought to create a fair report for the consultation.

The law society created a task force in 2006 to look into the issue, and the stakes are high for benchers. Questions on the table include whether the size of Convocation should be reduced, if ex officio life benchers should be done away with, and whether benchers should continue to adjudicate disciplinary matters.

Bencher Bradley Wright suggested the law society’s governance structure could be hard for some lawyers to grasp.

“We’re not a legislature, we’re not a private corporation. We really are unique and it’s going to be very interesting - and difficult, I would venture to say - for outsiders to fully understand what we do, why we do it, how we do it,” Wright told February Convocation.

Benchers last September approved consultations with lawyers and paralegals on its governance of the LSUC. The two-phase process started in November, when a workshop was held in which benchers could offer their views on whether changes are in order. Thirty-five benchers went to that session, according to a report from the governance task force.

The second phase involves talks with “a limited number of lawyers and paralegals, including leaders in the profession and other informed stakeholders,” stated the report. The task force created a discussion paper that will be used to inform consultation participants on the issues at hand, and it includes a set of questions.

Governance task force chairman and Bencher Tom Heintzman said his group sought to create a fair report for the consultation.

“I can tell you that the committee’s job has been to try to get balance,” he said. “That’s all we did. We tried to make sure that when we looked at the document it had both sides of the equation.”

But while Convocation has committed to moving forward with the consultation, many benchers suggested they should have a more fulsome debate of the task force’s discussion paper before going ahead with it.

The discussion paper will ask participants for their views on areas such as the bencher election process and the law society’s relationship with members, whether there’s a need to deal with the size or makeup of Convocation, and whether changes are in order for hearing panel members. Some specific questions include:

•    Are the elected benchers adequately representative of the legal profession in Ontario?

•    Is the level of voter turnout a symptom of how the profession relates to the law society?

•    Should the size of Convocation be reduced?

•    Should Convocation have an executive

committee? If so, what role should such a committee play in the governance structure?

•    Should term limits be imposed on elected benchers?

•    Should benchers continue to be adjudicators?

Bencher Gerald Swaye submitted a motion for benchers to debate the task force’s discussion paper in a committee of the whole meeting - which the public may not attend - before seeking consultation. That motion was slimly defeated, with Treasurer Derry Millar issuing a deciding vote against it.

Ex officio Bencher Ross Murray suggested the law society may be “putting the cart before the horse” by seeking the profession’s view on governance issues - especially regarding discipline matters - before fully debating the issues.

“I think discipline is our most important function, and I think we should be debating that amongst ourselves if we think there’s a problem,” said Murray.

He admitted that he knew little of the law society’s makeup and benchers’ responsibilities upon first being elected in 1991. Murray suggested most lawyers, with a similar lack of awareness, would not be able to provide a useful appraisal of the law society’s governance model.

“It just strikes me as something that might not be within the realm of knowledge of lawyers who have not been there,” he said. “I think before we start consulting, those are questions we should ask ourselves.”

Murray also attacked the task force’s discussion paper.

“There are some misleading statements in this report,” he said. “In a way, the report is shy on information. One of the things it’s shy on is describing what people do around here; what benchers do, what life benchers do, and explaining the role that we play.”

Bencher Janet Minor, a member of the task force, backed the group’s approach.

“It seems to me we need a very vigorous debate in Convocation - we need it after we have a considered report presented to Convocation for debate,” she said. “We need a report that’s informed by the very people who are affected by our governance: our members and the public, and we are seeking to get that input.

Our legitimacy as self-governors depends on the confidence that the public and the profession has in our structure.

“Surely we need to inform ourselves of their views and not just look inward when we are seeking to evaluate our governance structure.”

Bencher Linda Rothstein, also a member of the governance task force, said the law society must take responsibility for the fact, as many benchers remarked during the debate, that lawyers and the public are unaware of the institution’s role and makeup.

“It is a failure of the society that people like me and everyone else who appears around me who run for bencher for the first time don’t actually understand what we do and why we do it,” she said. “I think that is a terrible flaw in our governance.”

Rothstein suggested the governance consultation is an opportunity to expand the profession and public’s understanding of the LSUC.

She tried to ease some benchers’ view that the consultation would be tilted.

“I can tell you that our committee is working very, very hard to fairly represent all the opposing views so this can be an informed consultation process and we can get back the very best from our constituents about how we ought to operate better.”

The debate among benchers fuelled a wide-ranging set of responses on issues Ontario lawyers likely regularly ponder regarding their professional regulator.

In one exchange, Wright suggested low turnouts to bencher elections - noted on the task force’s discussion paper - can be attributed to the fact that the law society is not a big concern for government lawyers, as their employer pays their law society fees.

“It doesn’t indicate in the report that about a third of our members are in government, etcetera, and we are, essentially, irrelevant to them, for all the best reasons,” said Wright. “The people that we impact the most are the lawyers in private practice, and it’s the lawyers in private practice that tend to vote in these elections.

The lawyers in the large firms - we barely impact them; they get CLE [continuing legal education] inside the firm; they’re almost never in our discipline office.”

Millar was quick to rebut that view.

“I disagree with many of those statements, Mr. Wright. They’re debatable statements,” said Millar, later suggesting there are no statistics to back up his position on low election turnouts. “We’re the regulator of the legal profession.”

The task force will hold eight meetings during the consultation process. Up to two are to be held in Toronto with leaders of legal organizations. The rest of the meetings will be held in Toronto, Ottawa, London, and a northern community, according to the report. Around 10 lawyers and paralegals will attend each meeting.

The task force has compiled a list of individuals who will be invited to attend the meetings. Practitioners from different practice areas and firm sizes, as well as legal organizations, in-house counsel, academics, and those with expertise in corporate governance will be included, stated the report.

The meetings are expected to get underway later this month and wrap up by early May.

The task force will consider the input it received during the bencher workshop and meetings and report back to Convocation with a summary of the issues raised. It will then decide if more consultation is needed before drafting a final report for Convocation.

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