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LSO crowd-pleaser fee relief motion the opposite of what’s needed | Jonathan Rosenthal

Monday, September 21, 2020 @ 2:25 PM | By Jonathan Rosenthal

Jonathan Rosenthal %>
Jonathan Rosenthal
Let’s say a government were to go rogue and compel you to have a limb amputated. Quick! Which one would you choose?

In less gory but equally impulsive fashion, the Law Society of Ontario (LSO) is faced at the Sept. 24 monthly Convocation with a proposal that would necessitate a crude, operational amputation. Any appendage will do, it seems, as long as it conveys an impression of swift and decisive action. No X-ray. No consultation with a specialist.

This motion is an unfortunate antithesis of the kind of cool-headed vision that crises cry out for. Sprung upon us out of the blue by benchers Geoff Pollock and Marian Lippa, the so-called Fee Relief Motion would take a fire-axe to our budget, reducing members fees by a flat 25 per cent. Never mind that benchers and LSO employees have been rigorously at work, gathering data and ascertaining how best to come to the aid of those members most affected by the pandemic since it started.

It is lost on no one that this pandemic demands a concerted collective response. The movers have no monopoly on concern or empathy. We are all painfully aware that in some corners of our professional world, practices have collapsed. Others have been brought to their knees. These bare bones realities make this the worst possible time to clutch at knee-jerk notions that replace careful thought and analysis with emotive conjecture.

Prior to any action plan being launched, it should be a given that the first step involves compiling accurate research on the varying repercussions the pandemic has had on members. This data is vital — and LSO staff is well on the way to assembling it.

We know that the movers of this motion have not done this kind of basic spade work. How? Because I requested answers from them in an open letter over a week ago. There has been no response. No explanation, for example, of how they came up the 25 per cent figure. We remain in the dark as to whether they have any conception of the programs and staff that would have to be thrown overboard in order to achieve their 25 per cent goal. Did the movers conduct any research into which members have been financially flattened by the pandemic and which are holding their own? The preamble to their motion is premised upon the financial devastation of licensees in private practice. Were they aware that over 50 per cent of paralegals and close to 40 per cent of lawyers are not in private practice? Or the obvious — that government lawyers and paralegals are relatively unaffected? Have they seriously reflected on the fact that giving “fee relief” to those members who really do not need it would reduce our ability to offer help to those who do? Again, silence.  

Make no mistake, if passed, their proposal will stand as a destructive triumph of symbolism over data collection and long-established process. Worthy programs will be axed. Valued employees will lose their jobs. At a startlingly inopportune moment — in the midst of a crippling pandemic — a finely calibrated institution is certain to be thrown into chaos.   

Convocation — like every other functioning board of policy and oversight — has developed tried and true procedures to ensure that policy proposals are sound, adequately researched and costed out prior to their reaching the decision-making body. Benchers have a fiduciary and ethical duty not to latch onto and champion ill-considered proposals. 

With this motion, we have seen the opposite of sound policy making. The movers, it would appear, fell upon the crowd-pleasing notion of a flat fee reduction; liked the sound of it and scrawled it out on a napkin. They did not inform the audit and finance committee — an elementary step for any proposal of this nature — nor did they see any need to bring the LSO’s treasurer or CEO into the loop. Proceeding in this ham-handed manner is tantamount to a government MP proposing a massive budget cut without first running it by the minister of finance or the prime minister but by instead filing and tweeting it.

This is a trap into which the LSO cannot afford to stumble. Important programs should not dangle in the offing. Employees should not be left in a demoralized state, fearing for their livelihoods and the continuation of important work projects.

We are all stuck on this COVID boat together as it yaws, heaves and leaves us nauseated with worry. Bencher Gerard Charette reached what I regard as the wrong conclusion about the motion in a The Lawyers Daily column last week. However, he nicely summed up our shared hope that any action to alleviate the suffering caused by the virus needs to be undertaken, “with compassion and responsiveness to the difficulties faced by the members.” Amen to that.

The Fee Relief Motion is designed as a crowd-pleaser. It gives the appearance of dramatic action but is as nuanced and responsive to the complex sickness we are suffering from as a field hospital amputation. Convocation has a fiduciary and moral duty to both our members and the public to do the best we possibly can to protect and further their interests. Proposals like this option offer false hope. We can, and will, do a great deal better which is why I support allowing the audit and finance committee to do its work before having this issue play out on the floor of Convocation.

Jonathan Rosenthal is a criminal lawyer. He is an elected bencher of the Law Society of Ontario, professor adjunct at Osgoode Hall Law School and a fellow of the American College of Trial Lawyers.

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