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Benchers, do the right thing ... please | Dan Goldberg and Margaret MacDonald

Monday, November 23, 2020 @ 2:18 PM | By Dan Goldberg and Margaret MacDonald

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Dan Goldberg
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Margaret MacDonald
In August, the Law Society of Ontario (LSO) unveiled a policy to revoke the long-established exemption from payment of LSO fees granted to retired non-practising lawyers who are 65 years and above. The LSO’s original proposal was for this cohort to pay 25 per cent of the regular fee schedule, which is approximately $600 including tax annually. There was no prior notice to the profession of this proposal, nor any public consultation. So, what happened?

While it is not entirely clear, the proposal passed “in principle.” However, in the face of opposition from some benchers, Convocation also, effectively, punted the issue to the Oct. 22 meeting.

According to some benchers, in September and October, the benchers were flooded with correspondence from the profession opposing the proposal mostly, we assume, from those affected by the proposed change. In the face of this opposition, a new proposal of a 10 per cent fee payment was put forward and subsequently passed. While there is a lot more to the story than we have described, we will not go into granular detail regarding the various steps along the way for fear of losing sight of the big picture.

The COVID-19 pandemic has had many implications for the profession, two of which are the financial circumstances of some lawyers struggling with their practices as well as the budgetary challenges of the LSO itself. Towards this end, the LSO sought to address these problems.

While we sincerely believe the benchers acted in good faith, particularly those in committee who later put forward what they believed was a valid compromise, sometimes even benchers can arrive at the “wrong” decision. In this instance, respectfully, we believe they did. So, why are we being presumptuous in our belief that we are occupying the high ground and the benchers are not?

As previously mentioned, the proposal to eliminate the fee exemption was done during the summer while in the midst of a global pandemic. A proposal such as this should be well communicated to the profession and timely consultation sought. Neither of these has happened, to this day.

A simple study of how other Canadian jurisdictions address this cohort was not, apparently, undertaken. If one was done, no reference was publicly made to it. On the other hand, the Association of Retired Law Officers of the Crown (ARLOC) has examined what other Canadian jurisdictions charge their retired lawyers and found that 10 per cent is approximately double the average cost imposed in other provinces and territories.

A correlation of the proposed fees charged with services utilized by retired lawyers has been, at best, mischaracterized. During the October Convocation, a bencher stated that operating the law library and professional regulatory oversight has a cost associated with it. No doubt, it does.

Ostensibly however, there needs to be some correlation, at least in part, to support the contention that these services are, in fact, utilized by retired licensees. We know of no retired lawyers who travel downtown to use the Great Library as they no longer need to conduct legal research. Nor are we aware of any significant need to administratively regulate non-practising retired lawyers.

Those lawyers who retire before age 65 and wish to maintain their licence currently pay 25 per cent of the fee schedule in anticipation of being exempted upon reaching age 65. With little incentive to do so if the fee exemption is replaced with more than a nominal amount, this group will likely surrender their licences upon retirement, resulting in significant lost revenue for the LSO.

Should the fee exemption for retired lawyers 65 years and over not be restored, it needs to be replaced by a nominal amount, consistent with what is being charged elsewhere in Canada. Anything more than an amount supported by a proper cost-benefit analysis will surely lead to a mass surrendering of licences, again resulting in lost revenue for the LSO. A recent survey by the ARLOC of its members strongly supports this contention.

Some retired lawyers 65 years and over volunteer their time and knowledge to do pro bono legal work and have been exempted from paying LSO fees. It is not realistic to expect this valuable contribution from committed and experienced lawyers to continue at the same level if the exemption is revoked and replaced with an amount that is unjustified. We think that this unintended consequence of the LSO’s decision was not appropriately considered.

Retired lawyers live off a reduced income. In many cases, their incomes have dramatically dropped. In addition, the pandemic has precipitated many retired lawyers to financially assist family members who have either lost jobs or have had their incomes reduced. Some of these family members have had to return home to reside with their retired lawyer parents. Yet this cohort seems to be viewed as a “cash cow,” in part, to remedy the LSO’s financial problems.

What do retired lawyers actually receive from the LSO? Well, the weekly Ontario Reports, which are available free of charge, online, to everyone. We are eligible to vote for benchers once every four years and our names appear in the LSO directory. That’s it. How much could this possibly cost the LSO?

A motion is being brought forward at the Nov. 27 Convocation to replace the 10 per cent fee, approved in October, with a five per cent fee rate. The five per cent rate is in line with what most other jurisdictions in Canada charge their non-practising retired lawyers. The five per cent rate would be approximately $100 plus tax. It is both a real and reasonable compromise to this issue and is surely more than any real cost borne by the LSO regarding retired lawyers. It has the support of many retired lawyers and ARLOC.

We appreciate that some benchers have tired of discussing this matter and no longer have an appetite to consider an alternative proposal, one that is truly more reflective of reality and actually rests on some empirical data.

We respectfully ask the benchers to take whatever additional time is necessary to properly decide this matter based on the actual facts and not on ephemeral, specious conceptions. In the face of strong opposition to the manner in which this issue has been handled and to the decision itself, the profession deserves its leaders to arrive at a truly fair and equitable decision.

In our own small way, we would like to think that during our respective legal careers we made a positive contribution to the administration of the law. Now, the LSO should not, effectively, force us to make a decision between annually paying an unfair amount of money to maintain our licences and no longer being able to refer to ourselves as being a lawyer by having to surrender our individual licences. To do so feels disrespectful and not the way our or anyone’s legal career should come to an end. As such, we have to believe that this is not the benchers’ intention.

Benchers, let’s consider taking a mulligan on what happened this summer and early fall. As the title of Spike Lee’s 1989 film suggests, do the right thing ... please.

Dan Goldberg and Margaret MacDonald are retired Toronto area lawyers. The authors thank Linda Feldman, John Gregory and Priti Sachdeva for their extensive contributions to this article.

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