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LSO treasurer Mercer highlights need for co-operation at Convocation in run for second term

Thursday, May 30, 2019 @ 11:03 AM | By Amanda Jerome

In less than a month, the Law Society of Ontario (LSO) will hold a treasurer election to decide who will lead the regulator.  

It’s a two-person race between current treasurer Malcolm Mercer and newly elected bencher, Chi-Kun Shi. One has a long history with the law society and its working groups, the other says she’ll be “bringing the law society back to its members.”

The recent bencher election has brought a number of new members to the table. At the first Convocation with the newly elected bench, on May 23, Mercer noted that the “composition of Convocation is obviously very different than it was.”

Malcolm Mercer

Malcolm Mercer, LSO treasurer

In an interview with The Lawyer's Daily, he said that about “70 per cent of the benchers are new; they have not been involved in the law society before.”

“In excess of 40 per cent of the benchers ran on the StopSOP slate and, in my view, it’s going to be a difficult and important challenge to have Convocation work together in a constructive way, and overcome divisions, and to learn collectively how to work together in this new environment, and I think that’s going to be one of the greatest challenges,” he stressed.

The members who campaigned as part of the StopSOP slate have continued to position themselves as a collective at Convocation, releasing branded press releases listing the names of slate benchers and announcing their own nomination for treasurer: Shi.

“In my view, it is important that benchers come together as Convocation and not continue to work separately,” Mercer said when asked about the StopSOP slate.

“There is a real risk that we will be at odds with each other for the next four years if we don’t learn to come together,” he added.

Mercer believes his time as a bencher, as well as his adjudicative work at the Law Society Tribunal, will assist him if he’s re-elected for a second term.

“As a treasurer I have experience and expertise in how the law society itself works and I have, through experience, led Convocation through difficult issues over the last year. All of that expertise, insight and perspective is necessary to be a proper treasurer,” he said.

Chi-Kun Shin image

Chi-Kun Shi, LSO bencher

As much of Mercer’s experience is tied with his work at the law society, Shi is the opposite.

When her nomination for election was announced, Shi told The Lawyer’s Daily, “I am not a law society insider.”

“I am not part of an establishment. It is time for someone like that to lead the law society into reform and renewal,” she said.

Shi’s campaign for the role of treasurer includes: a goal to rescind the mandatory SOP requirement “as soon as possible;” a review of the law society’s budget; a plan to move forward on the issue of paralegals in family law, to seek consensus on which regime will best serve the public and improve access to quality legal services; strengthen support for small firms and sole practitioners as a means to improve access to legal services for lower income and marginalized groups; and a plan to pursue a consultative and respectful relationship with all benchers to bring their perspective into Convocation.

“I am ready, willing and eager to throw everything I have into the important task of bringing the law society back to its members,” she explained.

Mercer, a partner in McCarthy Tétrault’s litigation group, has been a bencher since 2011. His work on various law society committees includes: chairing the Advertising and Fee Arrangements Issues Working Group, acting as vice-chair for the Professional Regulation Committee and the Alternative Business Structures Working Group, serving on the Access to Justice Committee, Paralegal Standing Committee, Priority Planning Committee, and Summary Disposition Committee — as well as the Compliance-Based Entity Regulation Task Force, the Real Estate Working Group and the Challenges Faced by Racialized Licensees Working Group.

Mercer was elected as treasurer in June 2018 and, as he runs for his second term, he says there are two broad issues the regulator needs to address in the next year.

“The first is to look big picture at the administration of justice, [and] the role of the legal professions in that context,” he said, noting that reviewing how the professions achieve “best practices, best competence, best conduct” in post-licensing is an important aspect.

“How we seek to ensure that lawyers and paralegals are providing the best possible services to the clients that they serve and the public they serve; I think that ought to be a priority for this term,” he explained.

The second issue, Mercer noted, is access to justice.

“I think we need to continue to think seriously about access to justice and legal services in the way we regulate. A current example of that is the [LSO’s] technology project, which has been a significant focus in the last year,” he said, adding that concentrating on technology is important because lawyers and paralegals “will be challenged by new technologies in the near term and it will be important for them to innovate to be able to respond, to compete.”

“And at the same time, it will be important that we allow new ways of providing legal services to address currently unmet legal needs in a way which is appropriate,” he added.

As part of the access to justice issue, Mercer stressed the importance of regulation in dispute resolution.

“Whether it’s family law, or civil disputes, I think it’s reasonably clear that the system is not working well, and that ordinary people are too often unable to cope with the dispute resolution system, with the administration of justice, and aren’t able to afford the assistance required to be able to figure out how to make it work. That raises big, broad issues because the administration of justice, in my view, needs to evolve, but that’s outside of the law society’s jurisdiction,” he noted.

Mercer believes the law society has a “role to play in advocating for change,” but has a specific role in “trying to make the existing system work.”

“Whether that’s a matter of getting legal services to people who need them, dealing with the realities of self-represented litigants, [or] mitigating the problems that people experience trying to navigate the system” there continues to be “significant unserved areas where lawyers and paralegals are not now providing services,” he said.

“It may be that technology is the answer; it may be [that in] the unserved areas that we need to do a better job of getting out of the way. So, I think we need to be looking at all of that and it’s not just a one-year project,” he said, stressing that regulating in the access to justice and legal services context is “central to the role of the law society.”

Another issue Mercer said needs to be addressed is one that has been raised by a number of newly elected benchers: “whether the cost and complexity of regulation is appropriate.”

“In my view, we need to look seriously at cost from a public interest perspective, both focused on what is necessary and appropriate for the law society to do in order to protect and promote the public interest, but also not to be an undue financial burden in achieving that. We need to be both appropriate in what we do and efficient in what we do, and I expect looking at that will be a major exercise in the next bencher term,” he explained.

“I think we are going to be challenged after this election to look at what the role of the law society is in ensuring fairness to lawyers and paralegals in a human rights sense,” he told The Lawyer’s Daily, adding “there will be some who think that’s not the role of the law society.”

However, Mercer believes the LSO does have a role in ensuring the human rights of lawyers and paralegals are protected, “just as the rights of their clients are protected.”

Benchers, including the acting treasurer, will vote via a secret ballot at the commencement of the June 27 Convocation, followed by a vote count and release of results immediately reported by the secretary.

There had been talk that a special Convocation would be held in mid-June to address the Statement of Principles (SOP), but Mercer confirmed that the SOP will be addressed after the election on June 27.

“There has been a motion brought by two of the members of the StopSOP slate,” he said, “As a result, that motion will come forward under the bylaws to Convocation at the end of June.”