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Malcolm Mercer

Former LSO treasurer ‘wasn’t interested in leaving behind a pet project with my name on it’

Tuesday, July 14, 2020 @ 9:40 AM | By Ian Burns

Former Law Society of Ontario (LSO) treasurer Malcolm Mercer says leaders must remain patient and try to collectively address issues rather than dictating to people as he reflected on his two years as head of the organization which governs lawyers and paralegals in Ontario, a tenure which involved navigating through some choppy waters.

Mercer served as the 67th treasurer of the LSO from 2018 until handing over the reins to Teresa Donnelly at the end of June. He said his reason for initially seeking the top job was “straightforward.”

Malcolm Mercer, Former LSO treasurer

“I believe what the law society does is important because I believe the legal system is key to a properly functioning fair and democratic society, and the opportunity to lead the law society is a tremendous opportunity to contribute to that,” he said. “And I was always taught that if you can contribute to something that is important, you ought to.”

Mercer, who also served as a partner in McCarthy Tétrault LLP’s litigation group in Toronto, said he set goals for himself but was cautious to not set legacy projects, because he said he has always felt leaders who have pet projects “aren’t doing the right thing.”

“I wasn’t interested in leaving behind a pet project with my name on it. What I thought was important was to recognize that the first year that I was treasurer was the last year of the term of the previous bencher group, so that involved completing the work that had to be done,” he said, pointing to issues of licensing and governance. “Getting that work done was something that I focused on, but perhaps more importantly setting the stage for strategic planning and helping the next bencher group after the election to plot a course on the regulatory issues that mattered.”

But Mercer’s second stint as treasurer was characterized by a very different bencher table: there are likely very few lawyers in Ontario who are not aware of the fact that the 2019 bencher election saw a slate of candidates opposed to the controversial statement of principles (SOP) win a majority of lawyer seats at Convocation, leading to a number of heated debates.

“The view of the previous bench was not everybody agreed on everything, but there was broader agreement. But the bench which was elected in April 2019 has some fundamental divisions on important matters and so that was a very important part of the context for me,” he said. “A major priority after the election became helping the new bench to work together in learning about law society processes and legal services regulation, as two-thirds of those elected to Convocation were new. That became the challenge, rather than working with the existing bench with some refreshment, which is what I expected.”

Mercer said there are a number of issues he was involved with as both treasurer and bencher of which he is proud, such as working on regulatory liberalization to allow charities and not-for-profits to provide legal services.

“It remains to be seen how significant that will be but I thought it really important to allow people in society to have what they need brought to them when they come to charities and paralegals with their problems,” he said. “And looking hard at some of the business and economic issues in the practice has mattered to me, such as the alternative business structures working group. That has been important because access to justice is frustrated by the cost of legal services and trying to find ways to address that to achieve access while not losing the competence and quality of service which matter has been important.”

And a number of projects in which Mercer was involved have yet to be completed, such as dealing with access to justice issues in family law. He noted the law society has just issued a consultation on the role of paralegals in family law, which he calls another example of the necessity of a public interest regulator looking hard at all of the things that can be done to allow legal services to be provided to the people who need them.

“What the right answer is, is something I leave to the consultation process and the benchers. But it is fundamentally important we address these issues in a principled and thoughtful way,” he said. “[And] another project we started when I became treasurer, which involved looking at technological delivery of legal services, is going to be one of the most significant issues going forward.”

The balance between serving as treasurer and maintaining a legal practice had been much easier for him than it had been for other treasurers as he was coming to the end of his time as a practising lawyer at McCarthy Tétrault, said Mercer. He added he was “very confident” Donnelly would do well in the role but did offer some advice.

“I think any leader should stay patient and should try to bring out the best in people, and also recognize the job of a treasurer is not to dictate,” he said. “That doesn’t mean you’re not principled and you don’t have a sense of what is morally and ethically important for the public interest, but it does mean you have to be humble and recognize that collectively we have to address problems — and the treasurer’s job is to make that work.”

And Mercer has no plans to go gentle into that good night. He has been reappointed to hearing and appeal divisions of the Law Society Tribunal and will continue to do adjudication work and teach a course in legal ethics at Osgoode Hall Law School. And he said he remains interested in the public interest mandate of the law society and how the people of Ontario can continue to be well served by legal professionals.

“I think the idea of self-regulation of professions is still valuable, although not everyone would agree,” he said. “I think it provides independence to the professions from the state and it requires the professions to try to bring out the best in them, but it will continue to be a challenge to maintain self-regulation and self-regulate in a way that doesn’t compromise regulation itself. It is a challenging model and there will always be a tension between the necessary independence of regulation from the state and the need to act in the public interest, and not in the interest of the profession.”

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