Major changes are afoot to the way the Law Society of Upper Canada governs the profession, a move detractors are calling a threat to the body’s independence.
In a heated and fractious Convocation debate this month, benchers approved sweeping changes to the body’s governance structure designed to increase transparency and engage a disconnected bar.
However, the changes will require asking the provincial government to make legislative amendments, a dangerous prospect that could expose the LSUC to unintended consequences, several benchers said.
Clayton Ruby noted a prevailing distaste for self-governance and warned a packed room not to awaken a sleeping giant.
“Our independence is always at risk, and we are the guardians of that independence,” Ruby said. “It is vitally important that we don’t take steps to put it at risk. If the bar does not have that independence, we are nothing.”
On the other hand, those in favour of the reforms characterized the law society as bloated and dysfunctional. Induce change now or risk government intervention, they countered before voting on a set of recommendations from the LSUC’s governance task force.
In doing so, Convocation introduced 12-year term limits to end life-bencher status for those having served four terms and terminated ex-officio bencher status for former treasurers and attorneys general.
The reforms aim to reduce the size of Convocation, give electoral rookies a better shot at becoming benchers, improve voter turnout for bencher elections, and inject some youth into what’s seen as an “old boys’ club,” said Thomas Heintzman, chairman of the task force.
“Term limits will overcome or help to overcome the detachment that we see between the governed and the governors,” Heintzman said.
“Renewal, new ideas, rejuvenation are essential for this body to maintain the confidence of those it governs.”
The reforms come after more than three years of studies and consultations with lawyers in Ontario.
The sheer size of Convocation was a near unanimous complaint, Heintzman said.
With its unusual system of granting life-bencher and ex-officio bencher status, Convocation has ballooned to 83 members, including 32 unelected benchers.
Under the current system, by the end of 2011, membership will grow to 91, including 41 ex-officio benchers, a larger contingent than the 40 chosen by election, Heintzman explained.
“That is not a suitable situation for the efficient governance of the profession.”
He added that lawyers in the province don’t want to be represented by ex-officio benchers who tend not to actively exercise their rights to participate.
“They expect that people who will be on this tribunal will be elected and appointed and that they will be active, they will be engaged, they will participate,” he said.
However, not all benchers favoured the shift towards youth over experience.
“There are certain things we always say, like ‘fresh blood is good,’” said Alan Gold, an elected bencher and Toronto criminal lawyer.
“Fresh blood is only good all the time if you have a serious chest wound. Sometimes, fresh blood is not very good.”
Paul Schabas, a partner at Blake Cassels & Graydon LLP, pointed out that he is what passes for youth in the law society.
“I just turned 50 and yet I’m one of the youngest people in the room,” Schabas said in advocating for the changes.
“While we may have a monopoly on the provision of legal services in this province, it is a fragile one. Our governance model is indeed out of step,” he added. “Unless we propose change, unless we try to catch up rather than stay ahead of the curve, change will be thrust upon us.”
Jennifer Halajian, the room’s youngest and most junior bencher having been called to the bar 10 years ago, said the law society is not exactly accommodating to youth.
“If you look around this room, I’m all by myself. The vast majority of this room has three characteristics in common, and I’m not going to point out what they are but I bet you can guess. And they do not reflect the profession.”
Halajian went so far as to suggest that she feels generally disliked by her fellow benchers. She added that most of her colleagues in the profession don’t have the fondest impression of the law society.
“And they have no bones about telling me what they think of the law society. And I can tell you, they don’t think much if they think of us at all. And it’s reflected in the fact that only one in three of them bothered to vote in our elections,” Halajian said.
She implored benchers to “get beyond the smell of self-preservation.”
Others, however, said they were concerned only with the preservation of collected wisdom and institutional memory.
Neil Finkelstein, a life bencher, said that many of the prevailing legal issues the LSUC is currently grappling with have been touched on before.
And those who have already lived through it have much to impart, he said.
“These are issues where that experience and institutional wisdom are lost to the future, and we get nothing to compensate for it except a few less chairs.”
Why should younger lawyers be given an unfair advantage in vying to fill those chairs? Ruby asked.
After all, term limits are an inherently undemocratic move that restricts lawyers in their voting choices, he noted.
“The focus should not be on who wants to serve. But the focus should be on who the electorate wants to govern them. You reversed it.”
However, Ruby, whose upcoming life-bencher eligibility will be protected by a grandfather clause as part of the reforms, acknowledged that there are problems with the way the law society functions.
“We have not exactly met the pressing issues of our day. We’re by and large silent on the access to justice, legal aid question. We’ve done nothing significant about it,” he said. “We haven’t exactly grappled with the marginalization of women.”
But if the provincial statute is opened up, it would be naive to think that the government would simply agree to make only the changes the law society requested, Ruby said.
The attorney general of the day is sure to have an independent agenda and ideas for how governance of the legal profession should change, he said.
“We’ve given no consideration to these dangers.”
Former law society treasurer Harvey Strosberg echoed those concerns.
“If this act is opened up, it is impossible to control what the outcome will be,” he warned. “And you don’t want to go to Queen’s Park unless you know that you can control the outcome.”
However, it’s a loss of control that Bob Aaron, a long-serving bencher and Toronto lawyer, embraces.
“What I advocate is that the government give serious consideration to assuming the governance of the law society,” Aaron said, acknowledging his view would be shared by no one in the room.
Aaron was highly critical of the LSUC’s record of governance as he held up a copy of Lawyers Gone Bad, an insider exposé on the darker side of Canada’s legal profession.
“What I think we are doing this morning is rearranging the deck chairs on the Titanic,” Aaron said.
“The fact is that when it comes to the governance of the law society emanating from this room, we’re not very good at it.”
