The organization representing 12,000 practising lawyers is the latest to demand answers from the LSO
The Federation of Ontario Law Associations is asking the Law Society of Ontario to release a confidential report on its ousted chief executive officer’s pay hike, arguing that the “scandal has pulled the legal profession into disrepute.”
In a letter dated March 11th, FOLA Chair Allen Wynperle asked LSO Treasurer Peter Wardle to release the report finalized at the end of February by Dennis O’Connor, former associate chief justice of Ontario. The LSO had retained O’Connor to investigate the cryptic circumstances of a near-50 percent pay increase for Diana Miles, who has served as the legal regulator’s CEO since 2017.
Miles departed the LSO hours after O’Connor’s report was disclosed to benchers, members of the regulator’s governing board, under highly guarded conditions.
However, the benchers voted to keep the report confidential from licensees and the public. Following Miles’ departure, Wardle backed the decision, stating that O’Connor’s opinion “is privileged legal advice.” On Tuesday, he told two legal organizations that asked for the report that “matters related to employee performance and employment relationships are confidential.”
“Good governance dictates that independent investigations of public entities be published,” Wynperle wrote in his letter to Wardle.
Wynperle said that the LSO has “clearly” made mistakes. “These mistakes need to be aired and rectified,” he wrote.
“Creating a governance structure and putting in place safeguards to prevent this from happening again depends heavily on the particulars and the details, which licensees and the public have a right to know.”
In a letter echoing his response to the two legal organizations earlier this week, Wardle told Wynperle that he learned about Miles’ pay increase before informing benchers at a meeting in late November. “I recognized it as a situation that was deeply concerning and needed to be handled with urgency and in a way that would promote trust in our organization,” Wardle wrote.
“Following the meeting, we moved quickly to engage Dennis O’Connor to conduct a review and provide a legal opinion to Convocation so that we could deal with the matter in an informed way.”
On Thursday, Wynperle told Law Times that for legal professionals, the notion of privilege typically suggests one of two concepts: solicitor-client privilege, which prevents communications and legal advice between a lawyer and their client from being disclosed without the latter’s permission, and litigation privilege, which covers documents produced primarily for litigation.
When news broke that O’Connor would investigate Miles’ pay raise, Wynperle did not think such an investigation would trigger either type of privilege. As far as he understood, the report would neither constitute legal advice nor be produced for litigation purposes.
He wrote that he was unsure “that the LSO claim of privilege is correct, but if it is the LSO can waive that privilege.”
In response to Wardle’s statement that employee matters are confidential, Wynperle says he respects the fact that certain information would have to be redacted. He adds, however, that the LSO has a process for governing employees and “people would like to know… whether the process that existed worked properly, whether it was followed.”
Representing roughly 12,000 practising lawyers across 46 law associations outside of Toronto, FOLA is the latest legal organization to call for the O’Connor report’s release.
Last week, the Law and Mental Disorder Association and Women in Canadian Criminal Defence presidents, which collectively represent fewer than 1,000 members, submitted similar letters to Wardle and asked him to suspend or refund their members’ annual LSO fees. Ontario Bar Association President Kathryn Manning was more circumspect about the matter, calling the LSO’s handling of the controversy “critically flawed” but questioning “whether a battle for production of the report is worthwhile” given other concerns the legal profession faces.
The LSO is weighing feedback on proposed reforms to its governance structure that it introduced in October. Proposals to reduce the overall number of bencher seats, substantially slash the proportion of elected lawyers who can fill them, and increase the proportion of appointed benchers have been criticized by stakeholders, including FOLA, which said the changes would hurt lawyers’ ability to self-regulate.
Wynperle says the controversy around Miles’ pay “has hardened my views” on the proposed reforms.
“The benchers are the ones responsible for supervising and ensuring that the staff is doing the things that they ought to do,” he says. “I think reducing the number of benchers significantly… is not going to further the ability of the benchers to supervise and ensure that they do their due diligence.”
