The Work of a Bencher: Making Informed Decisions
Benchers make policy decisions. Making policy decisions require discussion, consideration and collaboration. Decisions are not made in isolation, but in groups, advised by committees and supported by policy staff. While this process can slow change down, it also brings careful consideration and perspective to decisions that affect the profession and the public. In my first four years as a Bencher, I have volunteered for committee work, conscientiously attended both committee meetings and Convocation and have considered the impact of policy issues by consulting with those directly impacted by our decisions. Believing in transparency, I have not and am not afraid to stand up on the hard policy decisions and explain the reason for the positions I take and the votes I cast.
Encouraging Excellence and New Candidates: Isfahan Merali
Increasing diversity around the Convocation table is vital to the development of our profession and the body that governs it. My work on the Bencher Election Working Group and on the Challenges Faced by Racialized Licensees strengthened my commitment to reaching out to talented colleagues who bring broader perspectives to policy issues faced by the Law Society.
I am enthusiastically supporting the candidacy of Isfahan Merali, Counsel with the Consent and Capacity Board and a public interest lawyer. Isfahan has already contributed to the work of the Law Society as a member of the Equity Advisory Group, a key policy support for the Equity and Advisory Issues Committee. She has served this committee while engaged in the full-time, complex work of counsel to an independent tribunal dedicated to fair hearings for vulnerable Ontarians in circumstances involving mental health and capacity. In addition to her professional attributes, Isfahan is a thoughtful and principled decision maker. She takes her responsibilities seriously. I am fortunate that she agreed to run for bencher as my “running mate” in this campaign. I highly commend her candidacy to the members of our profession. I believe she will make a significant contribution to the work of the Law Society.
Here is a link to Isfahan’s election website for more information about her platform: www.isfahanmerali.com
I am honoured to endorse Janet Leiper for re-election as Bencher. Like Janet herself, she is doing something quite unique and extraordinary in this Bencher Election campaign. Janet has decided to take a significant step past the mentorship of new candidates and actively champion a new candidate to encourage greater diversity amongst the Bencher group. As a result, Janet and I are ‘running mates’ in this election and collaborating during the campaign. This new new approach, initiated by Janet, will hopefully inspire others to do the same in the future, and change accessibility and inclusiveness at the law society in a truly exciting and meaningful way. I am truly honoured to run with Janet Leiper. Janet’s reputation as one of the most committed and progressive lawyers who cares deeply about access to justice, social justice, equity and diversity and legal education and mentoring is clearly demonstrated in the path she has chosen during her legal career. She has worked tirelessly in her diverse legal roles to promote these values and her reputation for integrity, inclusion and transparency has always been at the forefront of her work and in her role as Bencher. We are deeply fortunate to have her not only as a colleague, but as a leader in our profession. She is one of the most genuine, intelligent and committed lawyers I have ever had the pleasure of knowing and I am honoured to endorse her re-election as Bencher.
My Work as a Bencher: 2011-2015
During my first bencher term, I served on a number of committees, moving from the precision of Audit and Finance to the broader horizons of Equity and Aboriginal issues. I contributed to the Bencher Election Working Group where we spent hours debating how to make running for bencher less onerous: one of our goals being the need to ensure diverse candidates from around the province. We amended our by-laws to streamline the election in an effort to increase participation.
Since 2012 I have served on the Challenges Faces by Racialized Licensee Working Group. We surveyed, interviewed and conducted focus groups across the profession consulting with experienced researchers. We found compelling evidence that lawyer and paralegal licensees who identify as “racialized” (characteristics such language, ethnicity, country of origin etc. that are seen as differentiators from the dominant culture: an idea sometimes expressed in other writings as “visible minorities”) experience the impact of these characteristics at every stage of their careers. We also discovered that firms are beginning to understand more about unconscious bias and the role this plays in hiring and advancement.
A link to our Working Group’s consultation paper can be found here:
Since December 2014 and throughout early 2015, the Working Group has undertaken consultations around the profession to assess the role of the Law Society in the questions raised by the study and our research. We want to ensure that any systemic efforts available can support a more diverse profession where talented, capable professionals are not held back by lack of understanding or practices that should be reconsidered. We want to be able to measure progress and to share best practices. We have already heard repeated requests for access to mentors and networks.
This work is expected to continue into the next bencher term. I am hoping to have the support of the profession to continue. For more about the issues and impact of these consultations, see:
As part of my commitment to my role as bencher, for the past four years I have made time to sit as a bencher adjudicator on both the Hearing Tribunal and the Appeal Panel on disciplinary matters. I have also been a member of the Costs Working Group, Vice-Chair of the Tribunals Committee, and a member of both the Professional Regulation Committee and on the Access to Justice Committee. I am currently Co-Chair of the Equity and Aboriginal Issues Committee and Co-Chair and part of the Implementation Working Group which oversees the new Tribunal model adopted during this term.
Convocation meets monthly except during the summer and in March. I have attended all but one meeting of Convocation during my four year term. I speak when I have something to say and I explain my reasoning behind my vote on contentious issues.
There are some ceremonial aspects involved in the role of bencher. I have participated in Call to the Bar proceedings in both Toronto and Ottawa. The Call ceremony is a visual reminder of the responsibilities of this office. Every new call who crosses the stage and takes the oath is part of our future as a profession. The Call is often accompanied by conferring of honorary degrees on senior counsel, judges, academics or other deserving individuals who bring years of experience and service and who act as models of what is possible in a life lived with devotion to principle and the rule of law.
All of these experiences have helped me better define what I expect from myself as a bencher and what I can offer to the profession for a second term.
Looking to the next term, the policy questions and pressures relate to the relationship among the availability of high quality legal services; the competence and standards applied to licensees, and most fundamentally, how independent self-regulation will be expressed by the Law Society.
Convocation approved a review process in the year ahead to look at the outcomes to date of a recent reform to Tribunal process. In upholding our standards, I believe we are on the right track with the implementation of Tribunal reform which includesa new full time Chair; reporting to Convocation, and the hiring of non- bencher adjudicators with proven experience to increase the discipline complement and the rigour brought with required ongoing education and self-assessment. These reforms can only improve our jurisprudence, bring about efficient, fair hearings and drive consistency into our practices.
Challenges Faced By the Racialized Licensee Working Group
How to effectively drive cultural change that fosters diversity and ensures that a wider array of legal talent is available for the good of the public and the profession? This question is currently before our profession and the answer is vital to the future of not only our profession, but to the role we play in delivering services to the public. As a member of this Working Group, we are currently considering the solutions to this issue and it is our goal to present answers to Convocation in the fall. There are tremendous possibilities and expectations that will be challenging to fulfill, requiring a committed effort by the Working Group over the next term in office. I hope to be part of this process and these decisions to see this project through to its next phase.
Non-lawyer ownership of firms: Alternative Business Structures
I have attended presentations on the subject of firms such as those permitted in Australia, and England and Wales with non-lawyer ownership. I have read background material, emails from interested associations and practitioners, and attended a speech by a senior executive from an ABS-structured firm. I have spoken to colleagues who would be directly impacted by such firms.
I have reservations.
My reservations fall into three areas of concern:
The first and most fundamental is the independence of the bar in a democracy. External, non-lawyer ownership of firms poses a challenge to the autonomy of the bar and the development of the law in the service of the public. I am concerned with the notion that external interests might dilute this independence. In particular, I worry about the stunting of legal development where external ownership adopts a business model that seeks to dominate market share in targeted sectors of legal services. Over time, this control could weakens the role of the lawyer as professional and undermine the role of the profession as a check on authority and power. Power is not only that of the State, but it may also be that of powerful business interests. Where there are interconnected relationships among business and law firms, we run the risk of weakening our capacity to be and to act as an independent part of a democracy. Our legislation requires us to protect the public interest. This is the first lens through which I view the debate around the regulation of non-lawyer owned firms.
My second concern relates to the solicitor-client relationship. The ABS model, in its larger forms, accumulates groups of clients to provide a return on justice dollars in part to individuals or corporate interests who are not responsible for providing the services. If ownership is intrinsically linked to responsibility, this model cedes responsibility to those who have not been mentored, taught or modelled to work within framework of a professional Code of Conduct. Our legal culture is hundreds of years in the making. Pro bono, Legal Aid and volunteering for policy work are a part of our legal culture that begin from the day of Call to the bar until retirement. I am concerned that ABS risks diluting the lawyer’s duty to the client and the collective duties we owe to the public by our profession. Efficiencies and business imperatives risk treating clients as inventory. One senior executive from a successful ABS firm outside of Canada candidly admitted during a question and answer session that in his litigation sector, the interests of the plaintiff firm tended to align over time with the defendant firms; this raises concerns about a framework that could diminish the interest of the client. In some jurisdictions, the addition of public trading in ABS companies has required the creation of a notion of a hierarchy of duties, with the client and the administration of justice having precedence over shareholders or investors. It is hard to conceive of individual clients having an equal claim to loyalty, in a hierarchy that includes those with larger financial interests and control over decision making.
My third concern is with the regulatory capacity of the Law Society itself. We have spent significant time and energy on a policy question that in my view is not as important as the ongoing state of Legal Aid funding and a necessary ongoing commitment to the infrastructure that is critical to access to justice for the low income, the working poor and others at the economic margins. In other jurisdictions where they are permitted an ABS model, firms have moved into more lucrative areas such as personal injury, buying firms that provide that service. One ABS manager said, “we are not very good at family law”, a comment which I interpreted to mean that this area of law does not lend itself to the profitability of other sectors. Indeed, individualized litigation for working class families does not lend itself to economies of scale. It is not clear that ABS ownership will be any panacea for unrepresented individuals in time consuming, individualized areas of practice such as family and criminal law.
A Proposal for Shifting Our Energy Elsewhere
I see a better use of our immediate time by monitoring the impact of ABS firms in other jurisdictions, while simultaneously working within our mandate to achieve access to justice by exploring innovations in existing structures. We know that there are innovations under way. Lawyers have begun to create alternative practices from the collaborative fixed-rate immigration law office of one lawyer-business owner in Halifax, to a technology-savvy new Call to the Bar who is offering legal services in New Brunswick and Nova Scotia. I would like to see the Law Society encourage innovation within our existing law firm structures and explore how better access to justice can be done from the solid foundation of our core values: independence, public service and responsibility. There are growth opportunities in diverse areas of practice including e-discovery, anti-corruption developments, and new regulatory frameworks locally and internationally. The capacity of the Bar to encourage excellence, inclusion and innovation can be amplified by the work of the Law Society as regulator in the public interest. These are example of the opportunities to explore in the coming term.
We also need to renew our energy on the role of a robust legal aid system as the foundation of offering access to justice for low income Ontarians. We have the core infrastructure that is well-managed, supported by a research facility and fully on-line. We have a commitment from the bar to provide legal aid services. There have been reviews over the past 20 years which envision improvements that would provide greater coverage to the working poor and even to those above the low income cut off. It is time to review these options, both as a part of the access to justice solution, but also to recognize the benefits to having opportunities for learning, shadowing, articling and succession planning in the private bar.