When the retention of women in private practice working group presented its final report at a recent Convocation, all the recommendations easily carried, including the one for parental leave benefits.
The three-year pilot program, to be implemented in 2009, will make benefits available to lawyers who are sole practitioners, or in firms of five lawyers or less.
Belleville lawyer Karen Selick noted that, “Every politician knows you don’t vote against motherhood if you want to be re-elected . . . Not a single [bencher] dared vote against a recent proposal to subsidize motherhood among Ontario Lawyers.” (A perfect demonstration of creeping socialism, National Post, June 2.)
Ezra Levant, writing in the July issue of Canadian Lawyer, was of like mind. He called the law society’s scheme for parental leave benefits social engineering.
Both Selick and Levant made some compelling arguments against what they perceive to be a socialistic measure. Selick noted that the law society’s mandate is to regulate legal professionals in the public interest, and this “wealth redistribution scheme,” and “making some lawyers subsidize procreation by other lawyers,”
hardly seems to fit that mandate.
Selick also didn’t see how “encouraging more lawyers to take time off from their practice would alleviate any alleged shortage of legal services.” In any event, “Once the beneficiaries of the program have children to chauffeur to hockey practices or dentist appointments,” they will likely want to leave private practice for 9-to-5 government or corporate positions that also offer weekends off, paid vacations, and health benefit packages.
For me, however, the report on the retention of women in private practice was not a motherhood issue. I may be a bencher, but as a politician I am an abject failure. Since I was first elected 13 years ago, I have never been constrained, in my remarks or my voting at Convocation, by the consideration that I wished to be re-elected.
With the prospect of becoming a life bencher on the near horizon, thoughts of re-election are remoter than ever in the factors I consider. That is not to say I act independently of the wishes of the lawyers who elect me, or the profession generally.
When I first saw the parental leave recommendation, I nearly arrived at the same conclusion as Selick and Levant. At first, I too thought the society was treading far from its mandate.
Then I looked at the widespread consultation done by the society to elicit comments from the profession on the report and its proposed recommendations. Meetings were held throughout the province with lawyers and legal associations. About 900 lawyers and students attended the meetings, and the society received more than 55 written submissions from individuals and organizations.
The final consultation attracted a broad spectrum of lawyers, men and women, and from all types of practice settings and firm sizes. Their reaction was overwhelmingly positive.
Unless it is a matter of conscience, it would not be appropriate for a bencher to vote against a report and recommendations that attract such widespread approval and enthusiasm.
As a bencher, I receive much correspondence from individual lawyers and law firms, and prior to the presentation of the final report I did not receive a single letter or phone call critical of any of the recommendations. That made me sit up and take notice when, at first blush, I was not enamoured with the parental leave benefit recommendation.
Levant came close to the mark of what was another major consideration for me when he said, “The law society knows what’s best for moms, and now it’s moving from its ineffective bully pulpit to actually intervening in the market.
If a law society can take money from female lawyers who choose to go back to work right away and give that money to female lawyers who don’t, why can’t the law society tell firms to take money from lawyers who bill big hours to subsidize those who don’t or can’t.”
Precisely, but Levant’s observation did not drive me to the same conclusion as his. I remembered the law society’s bicentennial Convocation in 1997 at Niagara-on-the-Lake. I recalled some comments I made then when major law society equity initiatives on women in the legal profession were resoundingly approved.
I stated that I looked forward to the day when measures were taken to assist all economically vulnerable lawyers in the profession.
I remembered as well the law society’s report on sole practitioners and small firms. The research findings of that report confirmed what we all knew anecdotally to be true.
There are many lawyers, almost invariably sole practitioners, who earn marginal incomes. These selfsame lawyers provide legal services to the ordinary public and legal aid clients. Their low income is not a reflection of the calibre of the services they provide or of a lack of business acumen, but rather of the areas of legal work they do and the clients they serve.
If the law society truly wants to ensure the survival of economically vulnerable lawyers in private practice in order to fulfill its mandate of preserving access to legal services, then it will have to take steps to intervene in the marketplace, whether those steps include getting legislative authority to set minimum fees for legal services, or charging graduated annual membership fees based on income. Parental leave benefits are a tentative step in that direction.
Gary Lloyd Gottlieb, a Toronto lawyer, is a Law Society of Upper Canada bencher and a Toronto sole practitioner. His e-mail address is [email protected].
