The new rule would apply to lawyers and paralegals on a going-forward basis
Law Society of Ontario benchers voted 27-17 on Thursday to start indicating on the legal regulator’s register when lawyers and paralegals have been found guilty of certain offences, including those outlined under the Criminal Code and Ontario’s Occupational Health and Safety Act.
In a less divided vote, the benchers also passed a motion to indicate on the register whether a lawyer or paralegal is authorized to practise any other regulated profession, and to provide a link to that profession’s public register.
Introduced by the LSO’s professional regulation committee, which is made up of benchers, Thursday’s motion at the latest meeting of Convocation aimed to increase the transparency of the legal profession for the public. While the second part of the two-pronged motion on disclosing licensees’ membership in other regulated professions inspired little controversy at the meeting, benchers were more divided on the first proposal.
That proposal sought to publish licensees’ findings of guilt and convictions under certain statutes on the LSO’s public directory of Ontario’s lawyers and paralegals. In addition to the Criminal Code, the Income Tax Act, the Occupational Health and Safety Act, these statutes also include the Controlled Drugs and Substances Act, the Excise Tax Act, provincial or territorial tax or securities laws, or any other statute where the charge alleges “dishonesty on the part of the licensee or relates in any way to the licensee’s professional business.”
Bencher Rebecca Durcan, who presented the motion, clarified that the directory would be updated on a going-forward basis and would not include past findings of guilt and convictions.
Multiple benchers expressed concerns about the proposal, arguing that while they supported its overall spirit, it was overbroad as written.
“The scope concerns me,” Pam Hrick said. Hrick added that while she supported some findings of guilt being disclosed in the LSO’s public register, “I think that what’s being recommended here overshoots what is necessary to protect the public.”
Gerald Chan said he appreciated the proposal “from a public protection perspective,” but was “also mindful of the need for fair and proportionate regulation.
“My concerns mainly centre on the inclusion of… broad regulatory statutes like the Occupational Health and Safety Act, like the Securities Act,” Chan said. He added that these statutes “contain a large number of offences that can be established based on… strict liability where the onus is on the defendant to prove due diligence, failing which they could be found guilty of breaching any number of regulations under the statutes.”
While such information would technically already be public, he said publishing it on the LSO’s register and directory would signal “to the public that this is relevant information to the practice of law” that they should rely on when deciding whether to hire a lawyer.
“With great respect and appreciation for the work that [the professional regulation] committee has done, a narrower approach is required on recommendation one,” Chan said.
Shalini Konanur, the executive director and a senior lawyer at the South Asian Legal Clinic of Ontario, said she was particularly concerned about the disproportionate impact the proposal would have on racialized licensees and licensees with disabilities. “From my own work with thousands of people from these communities, I know that these groups experience higher rates of conviction... and they often plead guilty in our justice system because they cannot fight the systemic racism and discrimination within the system,” she said.
Konanur said she believed “that posting all convictions will fall hardest on these communities,” adding that many of her clients first approached her because they were facing employment discrimination based on their criminal records.
Other benchers argued in favour of the proposal. Megan Shortreed urged her colleagues to consider the proposal from “the perspective of public protection and the perspective of public confidence in this regulator to protect the public.”
Shortreed said that viewed through this lens, Durcan’s motion struck her “as a no-brainer,” and she would have favoured seeing more reporting from the professional regulation committee on foreign convictions.
She also reminded her colleagues that convictions are public, even if “they are not always easy for the public to find.”
Jonathan Rosenthal addressed Konanur’s arguments. “I listened very carefully to what Shalini said,” he told his fellow benchers. “There is no evidence that racialized lawyers and racialized paralegals have higher rates of convictions. There is no evidence that racialized lawyers and racialized paralegals plead guilty because they can't afford representation.
“But I ask you, when you think about this, only wearing your public interest hat, think about the racialized or Indigenous members of the public who are going to consult with a lawyer, and we are hiding that information from very vulnerable people,” Rosenthal added. “They are the ones who will be prejudiced. They won't know. They are at the greatest risk when they consult with a lawyer.”
In addition to the professional regulation committee’s proposals, benchers passed several other motions on Thursday, including expanding the LSO’s certified specialist program to include paralegals.
Benchers did not publicly discuss the results of a motion that 101 licensees voted to pass last week at the LSO’s annual general meeting, which asked the legal regulator to disclose the money it’s spent concerning a controversial pay increase for former chief executive officer Diana Miles.
LSO Treasurer Peter Wardle noted that the motion's results are not binding and that benchers will consider it within six months, as required by the regulator’s bylaws. Wardle said he planned to make recommendations to benchers in the next month or so.
He also addressed the technical difficulties many licensees experienced at the annual general meeting, which prevented some from contributing to discussions. The LSO plans to review its online meeting platform to ensure "that this does not happen again.”
