Focus On

Mixed signals seen in results of LSUC vote

Thursday, May 14, 2015 @ 8:00 PM | By Cristin Schmitz

Is the outcome of the Law Society of Upper Canada’s recent election a vote for change, or a steady-as-she-goes mandate? Opinion is divided among the new crop of benchers but the numbers lean toward the status quo.

Twenty-three of the 40 lawyers elected May 1 were convocation members the last time around, including treasurer Janet Minor, who garnered the most votes (5,932) of the 95 candidates. Moreover, all the incumbents who ran for re-election were returned to office.

But voter turnout declined. Just 34 per cent, or 16,040 LSUC members voted, down from 37 per cent of eligible voters four years ago.

Commercial litigator and media lawyer Paul Schabas of Toronto’s Blakes, re-elected for a third term with the fourth-highest number of votes (4,608) in the province, said incumbents usually get re-elected absent a burning issue such as the legal insurance crisis many years ago.

“I think the message is that people aren’t upset with the direction the law society is going, or that no particular issue is galvanizing the profession to cry out for change,” he said.

That view is not shared by first-time bencher Rocco Galati, the Toronto litigator who blew up the legal status quo last year by successfully overturning the appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court.

“[The law society] bureaucracy needs to take note of the fact that 3,466 lawyers rebuked them by voting for Joe Groia,” Galati told The Lawyers Weekly, adding that his election “and Joe’s election even more so” indicates LSUC is “out of touch” with members and the public.

Groia, also a first-time bencher, has said he will appeal an LSUC fine and suspension imposed on him for his alleged incivility in successfully defending a client in court. His case has provoked criticism that the law society is potentially chilling vigorous advocacy, including from the Criminal Lawyers’ Association.

Galati said the fact that he and Groia were elected with little campaigning and with no block votes from large firms is “a clear indication that there’s a couple of generations of lawyers now that are fed up with the status quo,” Galati said. The law practice program, which Galati describes as a “second-class articling tier,” and racial inequity at the law society and on the bench are among the issues stirring dissatisfied members, he said.

“I was happy see a much healthier racial mix in this election. I think that [the diversity issue] resounded with people.”

Douglas Judson, past-president of the Law Students’ Society of Ontario and vice-chair of the Ontario Bar Association’s sexual orientation and gender identity section, said it was “really compelling” to see how many candidates engaged with issues of equity and access. LGBT lawyers are “very happy” that the law society is continuing to defend its decision not to accredit Trinity Western University’s proposed law school, he said. Law students want the law society to focus on the affordability of legal training, he said.

“I think for the most part, students really want our regulators and our educators to come together and think about what are we really trying to achieve with this training, licensing, supply-chain process, and find a better way to integrate these skills and classroom components toward something that may be a bit more cost-effective for students, and consequently would be a bit more accessible,” Judson said.

He noted campaigns played a role in the outcomes of this bencher election.

“People like Sandra Nishikawa, who came forward and had a team behind her…really engaged with the profession and [were] available through social media, and put out really professional, polished communications — I think they were really able to steal the show and to get their message across a bit more coherently than others.”

Judson said he believes it is important that the direction of the law society is debated during elections every four years, but “we need to be cautious about whether these campaigns devolve into lawyers being viewed as a constituency for the law society, because the law society is a public interest decision-maker…there were certainly some organizations out there that were really banging the drum on single-issue matters and trying to get certain outcomes on those.”

Judson cited the Ontario Trial Lawyers’ Association’s lobbying against liberalization of law society rules to permit non-lawyer-owned alternative business structures (ABS). Judson said ABS is an issue that should be considered in the light of the law society’s mandate to protect the public interest and access to legal services, “and not just in the interests of what [benchers] promise to the lawyers that vote them there,” Judson said.

However, former OTLA president Charles Gluckstein said the association’s campaign raised consciousness within the profession about potential harms to the public interest when law firms are publicly traded or otherwise controlled by non-lawyers.

“When we tallied it, I think 28 of the 40 benchers were candidates that we had endorsed, and that’s not including the treasurer who we also endorsed,” Gluckstein said. “I think that out of the remaining 11 that made it, I think only four were outright in favour of ABS — many of them were on the uncertain, yet-to-be convinced category and so therefore weren’t on our endorsed list. But we’re very, very pleased with the results.”

The OTLA wants the law society to shelve the issue for at least three years to permit more data to be gathered about the impact of ABS in the U.K. and Australia.

Gluckstein said he anticipates it will be a year before benchers vote on the matter.

“We’re going to remind those that we endorsed of the views that they had at the time of the election, and we’re going to continue to lobby those that did not give us their position, or were in favour of ABS, to try to sway them,” he said.

Derek Ross, executive director of the Christian Legal Fellowship, suggested by e-mail that new benchers consider, in respect of the denial of accreditation to TWU, “how they might advance the LSUC’s Statement of Principles, Respect for Religious and Spiritual Beliefs…in which the Law Society specifically condemned ‘in the strongest terms’ all discrimination based upon religious and spiritual beliefs, as well as ‘all forms of religious intolerance,’ and further undertook to ‘promote and support religious understanding and respect both inside and outside the legal profession.”