The County & District Law Presidents’ Association is calling on the law society to “stop studying” and move forward with reforms to its governance structure, saying it’s the best way to defend the profession’s independence.
CDLPA chairman Randall Bocock tells Law Times that a report issued through the Law Society of Upper Canada’s ongoing governance review “is a gentle nudge from a friend” that includes ending life bencher positions by introducing term limits.
He describes the law society as a privately run institution acting in the public interest and suggests it needs a governance structure that is familiar to the public, accountable to lawyers and paralegals, and transparent.
“If you don’t have governance structures that meet that test, people are going to start to question why a private organization is administering the regulation of a very important profession in the public interest,” says Bocock.
The CDLPA submitted its proposals to the law society following a recent consultation process and released them publicly this month.
The LSUC has been seeking the profession’s input on a number of governance questions, such as the bencher election process, the size and nature of Convocation, and the separation of benchers as adjudicators and regulators.
The review could have major implications for the profession. Lawyers in England and Australia have lost the right to self-governance due in part to the perception that their regulatory bodies weren’t adequately serving the public interest.
The CDLPA proposals call for a splitting of benchers to work exclusively on either governing or disciplinary matters.
Under the plan, benchers would continue to be elected to Convocation but each year would decide how many of them would sit on either the governing council or the discipline bench. A new deputy treasurer would act as the chairperson of the discipline bench.
The CDLPA also wants the LSUC to introduce term limits, proposing that benchers serve no more than three four-year terms. After that, they could serve a final four-year term as a bencher emeritus. The proposal would phase out life benchers by permitting them a final four-year term.
The association proposes as well that non-benchers from “stakeholder groups” be placed on certain Convocation committees and working groups, an idea University of Toronto law professor Lorne Sossin says is potentially the most critical reform.
“This whole notion of getting specialized expertise in from the broader community to enhance the effectiveness of the benchers is a very positive move and deserves to get highlighted for praise, and I hope the law society takes that to heart,” he says.
“I think it will make it a much more vibrant but well ventilated organization. There is a sense of exclusiveness and elitism that it has gotten in many quarters in the profession, and I think this is a great way of dealing with that concern.”
Besides recommendations on term limits and outside expertise, the CDLPA suggests that Convocation appoint two additional benchers to deal with any “representational deficiencies” apparent after elections. Convocation could appoint non-elected members to the discipline bench as needed.
Convocation committees should be restructured to better fit the LSUC’s roles ascribed in the Law Society Act, said the CDLPA.
The report also suggests that more law society work be open to the public.
“The use of in camera proceedings should be amended in order to conform to a more modern notion consistent to present standards of access to information under freedom of information legislation applicable to quasi-public institutions, which given the law society’s ‘public interest’ mandate is relevant,” stated the report.
While the law society has taken an important step by studying its governance structure, Bocock says it’s time to bring in some meaningful changes.
“We’re not suggesting this is the panacea to all the problems but we are saying that if you adopt something that is reasonably similar to this, this will constitute a major step forward in delivering a model of governance that is more transparent, more recognizable, and more accountable,” he says.
“We’re also gently saying it’s time to stop studying and it’s time to get on with the reforms.”
For Sossin, meanwhile, the law society’s current governance structure is “misaligned to the need for its leadership in decision-making.”
He suggests it’s a no-brainer for the law society to get rid of life-bencher positions.
“There’s no principled reason why anyone should have membership on a body for life,” he says. Term limits would help inject new blood into the institution and ensure it keeps in touch with the profession, he adds.
But the CDLPA’s proposal for Convocation to pick two additional benchers following elections may prove difficult to implement, says Sossin, who notes it could be challenging to establish criteria for selecting candidates.
“I think the idea that the election process will tend to disadvantage some kinds of voices and advantage others is well known and not likely to change without some kind of draconian spending limits that may be counterproductive because then no one gets the message out,” he says, adding “the devil will be in the details.”
But Sossin suggests the biggest roadblock to change at the law society may be the self-interest of those voting on the reforms - the benchers.
“Whatever changes happen are going to have to be embraced, or at least bought into, by the current group of leaders, who of course are this fairly unwieldy structure that we’re trying to reform,” he says.
“I know some issues, like term limits, are going to be viewed in a very mixed way,” says Sossin. “If you’re sitting in your third term and you’re thinking about a proposal to limit benchers to two terms, it’s hard not to feel personally invested in that question.”
Bencher Tom Heintzman, chairman of the law society’s governance task force, hoped to have a report to Convocation this month on findings from the consultation process. It would then be up to benchers to decide the next steps in the governance review.
But law society communications director Roy Thomas says the results are “being consolidated” and will likely be presented at October Convocation.
