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Law Society of Ontario reduces annual fees, accepts Rosenthal’s return despite objections

Monday, October 28, 2019 @ 11:35 AM | By Amanda Jerome

The Law Society of Ontario (LSO) has approved a “streamlined” budget for 2020, which Audit and Finance Committee chair Teresa Donnelly called “responsible.” The budget reduces the lawyer and paralegal annual fees and it keeps the regulator on track to replenish the compensation fund, which took a hit in the middle of the past decade.

According to the budget report, presented to Convocation by Donnelly on Oct. 24, the budget “incorporates an annual fee decrease for lawyers of $135 (slightly more than six per cent) for an annual fee of $2,066. The annual fee decrease for paralegals is $109 (9.75 per cent) for an annual fee of $1,006.”

Teresa Donnelly, Audit and Finance Committee chair

“The budget proposes to maintain the licensing fee at the same level as for previous years for lawyer candidates,” said Donnelly, noting the cost is $4,710 for lawyer candidates and $1,140 for paralegal candidates.

Donnelly explained that the annual fee reduction is “being driven by reduced expenditures” identified by the law society’s executive team. Other contributing factors, she noted, are that the 2020 budget doesn’t include funds to continue the public awareness campaign, and that the contingency fund has been reduced from $1.5 million to $1 million.

“You will note that there’s a reduction of $515,000, which is related to bencher remuneration and expenses,” she added, noting that there’s also been a net reduction of 6.5 full-time equivalent employees at the law society.

Donnelly described the 2020 budget highlights as: “a reduction in operating expenses of $3.1 million. For the first time in 10 years there’s a reduction in the fee for lawyers and paralegals of six per cent for lawyers and nine per cent for paralegals. Depending on what happens with the compensation fund experience as a result of the three-year plan, which ends in 2020, this may be the final year for the $5 million in supplementary funding to replenish the compensation fund.”

The Audit and Finance chair said that the 2020 budget does not include “allowances for anticipated projects” and that “going forward, any approval of new policies or programs will be presented on the basis of cost of implementation.”

“We have a $1 million contingency [fund] and if there are unanticipated projects or emergency funding that needs to be done on an emergency basis, there is still [that] contingency,” she stressed.

As well as approving the 2020 budget, Convocation also passed a motion to approve the LibraryCo Inc. funding at just over $8 million. Donnelly noted that amount “translates to $182 per year per lawyer compared to $191 in 2019.”

Convocation also approved motions brought by the Professional Regulation Committee regarding amendments to the bylaws and Conflict of Interest Rules. Amendments on the agenda for bylaws regarding anti-money laundering and terrorist financing were taken off the table by the committee chair Jacqueline Horvat and will be brought before Convocation at a later date.

Jacqueline Horvat, chair of the Professional Regulation Committee

Convocation passed the motion to approve amendments to law society bylaws 11 and 12 to “accurately reflect the current structure of the professional regulation division” to update titles of people in the Professional Regulation Division.

The benchers also passed a motion to “approve the amendments to Rules 3.4-16 through to 16.6, which are titled ‘short-term pro bono legal services.’”

Horvat explained that the short-term rules, enacted in 2010, currently apply to two groups of lawyers: “those who provide short-term legal services under the auspices of a Pro Bono Ontario program and those who provide short-term services as a volunteer under the auspices of a pro bono or not-for-profit legal services provider.”

“Under the rules, short-term legal services, such as duty counsel or summary legal advice services, are defined as including legal services or representation with the expectation by both the lawyer and the client that the lawyer will not provide continuing legal advice or representation in the matter,” she added.

Horvat noted that lawyers in these circumstances “provide short-term legal services without taking steps to determine whether a conflict of interest arises from duties owed to clients, or former clients, of the lawyer’s firm or the short-term legal services provider.”

“If the lawyer knows or becomes aware of a conflict of interest, the short-term rules require that the lawyer cease providing services and he, or she may not seek the client’s waiver of the conflict,” she added.

Horvat explained that short-term legal services are usually provided in circumstances “in which it is difficult to systematically screen for conflicts of interest, which may result in delays or the outright denial of services.”

“These rules attempt to remedy this problem and serve to promote access to justice for vulnerable members of the public,” she noted, adding that feedback from Pro Bono Ontario says these rules have been a “resounding success” and the public has “benefited enormously.”

However, legal aid lawyers do not fall under either of the groups to which these rules apply because they are paid and do not provide short-term legal services under the auspices of a Pro Bono Ontario program, stressed Horvat.

“Legal Aid Ontario has requested that we extend these rules to their lawyers who provide short-term legal services in similar, if not identical, circumstances, to the lawyers in which these rules currently apply,” she added.

The Professional Regulation Committee chair said the majority of the committee recommended that rules 3.4-16.2 through 16.6 be amended to the following four principles: 1. the rules should apply to Legal Aid Ontario lawyers who provide short-term legal services; 2. the rules should also apply to lawyers who provide short-term legal services through a clinical education course or program; 3. the terminology used in the short-term rules should be changed so that the rules are applicable to both pro bono and paid lawyers providing similar, short-term services; 4. lawyers in private practice who provide short-term legal services in circumstances to which these rules apply should be advised in the commentary that it’s best practice to screen for conflicts involving their private clients.

The committee proposed that the name of the rules be changed to “Pro Bono and Other Short-term Legal Services” and that the terminology in the rules be changed to reflect short-term work. The committee also proposed that the rules include a definition of “clinical education course or program” as well as a reminder on minimizing risk for conflicts of interest.

Jonathan Rosenthal, bencher

Convocation also approved a motion to elect Jonathan Rosenthal as a bencher to fill the vacancy left by Orlando Da Silva’s departure. Prior to the vote, 14 benchers signed their names to a letter declaring that they would abstain from the vote due to comments Rosenthal had made in the Globe and Mail about Chi Kun Shi during her campaign for treasurer. The letter called for a public apology for the comments.

According to the letter, Rosenthal’s remarks relating to Shi’s representation of a client “can be seen as placing peer pressure on lawyers not to represent certain kinds of clients or causes or else the lawyer will be identified with the client or the cause.”

The letter noted that this suggestion “undermines a fundamental principle of the rule of the law that everyone has a right to legal representation without which there is no access to justice.”

Rosenthal would not comment on the letter but told The Lawyer’s Daily that he’s “looking forward” to returning to his duties as a bencher.

“I look forward to working with my new, and not-so-new colleagues, and working to ensure that the law society remains healthy, relevant and to independently regulate the legal profession of Ontario,” he added.

Chi Kun Shi, bencher

Shi told The Lawyer’s Daily that the article in the Globe and Mail had an impact on her professional life.

Shi said Rosenthal’s comments in the Globe matter because they represent  “a view of lawyers which is antithetical to the rule of law in which all persons have the right to legal representation regardless of their social standing.”

“It also makes a mockery of the LSO which governs, among others, criminal lawyers who repeatedly represent people who are found by our courts to be anti-social characters and menaces to our society. Either Mr. Rosenthal is wrong, or [the] LSO needs to immediately start disbarring almost all criminal lawyers, including former benchers such as Clayton Ruby for their support of murderers, rapists, pedophiles, robbers etc.,” she said.

“As Convocation responds to our letter by pleading that it is but a rubber stamp in this process by reason of bylaw stipulation, Mr. Rosenthal’s admission into Convocation may serve as another occasion for [the] LSO to take a look at its own conduct while it repeatedly drills its members on the rule of law and other virtues. After all, the bylaws did not prohibit benchers from asking Mr. Rosenthal to apologize, nor does [it] not prohibit benchers from abstaining from this vote,” she added.