Former LSO treasurer Vern Krishna, counsel at TaxChambers LLP in Toronto and law professor at the University of Ottawa, says the law society may risk losing more than it gains from the changes, which take effect after the upcoming bencher elections on April 30, 2019.
“Institutional memory comes into play when something is on the table. You can’t just create a binder labelled ‘institutional memory’ and hand it off — it is a more fluid concept,” says Krishna. “The loss of corporate memory is unfortunate because it shifts the balance of power. In a democratic body, you have to balance many interests. An election is only one of those interests.”
The law society board of benchers is currently composed of several groups: eight provincial government-appointed or “lay” benchers, 20 Toronto lawyers elected by members of the profession, 20 elected lawyers from the rest of Ontario, five elected paralegal benchers and a group of ex-officio and honorary benchers.
Changes approved by the law society on Nov. 30 affect ex-officio and honorary benchers.
The group of ex-officio and honorary benchers currently include former treasurers, Ontario attorneys-general, “emeritus” benchers and “life benchers.”
An LSO Governance Task Force report said that there were 40 ex-officio benchers, including the current treasurer and the current attorney general, and 17 of the ex-officio benchers who “participate regularly,” the report said. These 17 benchers will be most affected by the changes approved on Nov. 30.
Thornhill lawyer Alan Silverstein, who will lose his title of emeritus bencher next year, noted that emeritus benchers have already had minimal roles in Convocation since the previous governance reform, which he supported.
“I never felt entitled to be a life bencher,” says Silverstein. “I voted in favour of the [early-2010s governance] changes because I thought they were the right thing to do.”
Emeritus and life benchers are both past elected LSO benchers but have two different sets of privileges created by governance reform passed in 2009 and implemented in spring 2010.
As it stands now, former treasurers after 2010 are currently referred to as “emeritus” treasurers and have had the right to participate in Convocation debates but not the right to vote, according to the report submitted to Convocation on Nov. 30.
As for former benchers, emeritus benchers are those who served 12 years as of the last governance reform and have since had no rights at Convocation.
The law society has more governance changes left to debate, including the number and size of committees, and meeting schedules — but those debates will wait until Convocation can determine “the effect of the initial changes that come into effect in 2019.”
“This approach will help Convocation assess the changes and assist it in recommending the most appropriate future changes,” said Law Society Treasurer Malcolm Mercer in a statement in the Law Society of Ontario Gazette from Nov. 30.
Former treasurers from before 2010, such as Krishna, can, as of now, both debate and vote at Convocation. But at Convocation’s May 23, 2019 meeting — the first under a new governance structure — that will change and Krishna will only be able to speak at Convocation but not vote.
According to the LSO’s Governance Task Force November 2018 report, ex-officio benchers without the “emeritus” title — life benchers that served 16 years or more as of the 2010 reforms, former treasurers and former attorneys general — were “grandparented” into Convocation with the 2010 governance reform, which also imposed 12-year term limits, the report said.
Life benchers and attorneys general cannot vote at Convocation but can debate. Those rules are set to change after April 30, 2019. The new 2018 governance reform proposal essentially consolidates these groups — meaning that all former treasurers will not be able to vote at Convocation but will be able to participate in debates, and all other former ex-officio members will not have Convocation rights.
In particular, Convocation approved ending the role of “emeritus bencher,” axing Convocation rights of ex-officio benchers who served 16 years or more in office, barring voting rights for former treasurers and terminating Convocation rights for former attorneys general.
But the LSO also struck down some initiatives, such as a proposal to shrink bencher term limits to eight years, down from 12 years. The role of emeritus treasurer, too, remains intact after the vote, despite the committee’s recommendation to eliminate the office. Benchers also tabled a proposed bencher code of conduct, which will be discussed at a Dec. 10 Convocation meeting. Over the past decade, the law society has moved away from lifetime membership, introducing term limits in 2009.
Heather Ross, a lawyer at The Ross Firm PC, will lose her right to speak at Convocation and said in an email statement that she had already decided to retire from the LSO effective June 30, 2019 and she supports the governance reforms.
“We can still serve on and vote in committees; however, a series of recent successive treasurers have eliminated our ability to serve on committees by simply not appointing most of us ex-officio benchers to committees,” said Ross in the statement. However, Toronto lawyer Bob Aaron, who practises at Aaron & Aaron, said ex-officio benchers have “effectively been shut out of participation in Law Society business.”
“This and having our ex-officio status taken away . . . is the thanks we get for more than 16 years of diligent service to the profession,” said Aaron in an emailed statement.
Sole practitioner and life bencher Julian Porter said he is most concerned that a smaller Convocation will affect communities in Northern Ontario, “who need representatives to struggle with the problems of a vast area with many difficult problems in daily practice.”
“A reduction of size will just give Toronto more power, which is a mistake,” said Porter in an emailed statement.
WeirFoulds LLP counsel and Toronto lawyer Derry Millar, the last life treasurer who helped champion the 2010 governance reforms, told Law Times in an emailed statement that he already opted to stop attending Convocation, instead participating with the law society as vice chairman of LibraryCo and vice chairman of the Law Society Foundation.
Emeritus bencher John Campion, a partner at Toronto-based Gardiner Roberts LLP, said in an emailed statement that the new structure of Convocation is a “rational” first step as the profession confronts new challenges brought on by the digitization of legal services.