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Is Law Society of Ontario led by nepotism? | Michael Lesage

Monday, August 08, 2022 @ 10:44 AM | By Michael Lesage


Michael Lesage %>
Michael Lesage
At least since becoming fashionable to do so, the Law Society of Ontario (LSO) has parroted a strong commitment to equality, diversity and inclusion. It commissioned the oft criticized Challenges report, and even went so far as to require licensees to themselves adopt a Statement of Principles acknowledging their individual responsibility to “promote equality, diversity and inclusion generally” (before backtracking amid fierce resistance).

Oddly, the law society seems more interested in mandating this commitment from its members than applying it to its own operations; i.e. leading by example. For instance, despite the demographic makeup of the profession (still more than half male, until it stopped reporting this inconvenient truth with its 2020 Annual Report), until recently, males were completely missing from the eight-member law society Senior Management Team (there is now one). To large extent, skin pigmentation also appears strangely absent from this group, though it’s near impossible to tell, as it’s 2022, and we’ve been conditioned to not see skin colour (except perhaps when it’s inserted into an LSO-sponsored inclusion index to help large firms advertise and win more corporate and governmental business).

Of course, the senior management team is assisted by elected benchers in governing the law society. The benchers sit in Convocation, as directors of the corporation, and additionally are assigned to committees by the treasurer. The committees are in turn responsible for examining issues (real or imagined) and generate the steady stream of “good ideas” that the law society is widely known for (such as the Statement of Principles (SOP), Alternate Business Structures, the paralegal family law licence, ever- growing budgets, etc.). However, some benchers are more equal (or liked) than others, which is reflected in committee assignments at Convocation (and leadership positions on those committees).

As those who follow the profession may be aware, there are two district groups at Convocation. On the one hand, are the establishment types, the proverbial “cool kids,” who invariably support the initiatives of management and “toe the line.” On the other are the “outcasts,” namely members of the slate (who won more votes in the last election than the “cool kids”) along with the writer (who largely did not), who seek to reform the law society in one way or another. The slate's main claim to fame is opposing the SOP (to which I was on the sidelines). Otherwise, the outcasts generally agree that the LSO needs fiscal discipline and little else. The treasurer, selected by Convocation is one of the cool kids.

Surprisingly, the cool kids have disproportionate representation on the various main committees, of which there are 13 (if you count subcommittees). For instance, of the 136 spots on committees filled by members of the two groups, 94 are filled by the cool kids while only 42 are filled by outcasts. Though there are a few more cool kids (29) at Convocation involved with committees than outcasts (23), they fill more than twice as many committee positions. Were committee spots assigned equitably, the cool kids would hold 76 positions (instead of 94) to 60 (instead of 42) for the outcasts. The outcasts have an even worse showing on the “other” committees and appointments, scoring just six of 27 positions. Clearly, the treasurer must believe that the cool kids are that much more capable, lest she be seen to be favouring her cool friends through her selections. (Wikipedia defines nepotism as “a form of favouritism that is granted to relatives and friends in various fields”; though such committee selections are not unique to the current treasurer.”

This chart shows the inequitable distribution of committee positions extends to the leadership of committees, where benchers are appointed as either chairs or vice-chairs. For the 13 main committees, there are 26 leadership positions, either as chair or vice-chair. Of these, the outcasts who make up 43 per cent of benchers participating chair one committee (out of 13), or less than eight per cent. Meanwhile, the cool kids lead the other 12 committees (92 per cent). The cool kids’ lead is narrower in terms of vice-chairs, though they still lead with eight assignments to five, and ultimately fill 20 of the 26 leadership positions, to just six for the outcasts.

The preference for and over-representation of the cool kids has led to another rather interesting phenomenon, namely the emergence of the “Super Bencher.” Super Benchers are those who are unilaterally appointed to much larger roles in law society governance/leadership than would otherwise be expected. For instance, were assignments made equitably, each individual bencher could expect to be on between two and three committees (around 2.6). However, 13 Super Benchers are on four or more committees, with the most favored Super Bencher sitting on seven, while a further handful sit on five. Of the Super Benchers, all with the exception of one, are cool kids. Interestingly, four out of five paralegal benchers are Super Benchers though who can say what, if any relation that has to the paralegal family law licence?  

Troublingly, the favouring of and over-representation of the cool kids, and the sidelining of the outcasts serves to erode the legitimacy of the committee system in law society governance, along with law society governance itself. Further, given the membership of the cool kids (which includes the lay benchers along with most of the paralegals) it also raises questions as to whether the law society is in fact, self-governed as advertised (given the outcasts hold 23 of the 40 bencher positions open to lawyers and are yet excluded from meaningful management oversight)?

Predictably, the overt preference of some benchers over others has led to costly governance problems at the law society. Cognizant that certain benchers are outcasts, management is selective in terms of which benchers (directors) it chooses to provide information regarding its operations to upon request (including the writer, who is only graced by management with responses to his inquiries sporadically). Fed up, bencher Murray Klippenstein sued the regulator for disclosure, resulting in costly, if entirely avoidable litigation (especially given its mandate under the Law Society Act to act in an open and efficient manner). It will be interesting to see what, if any information the Superior Court determines outcast directors of the law society are ultimately entitled to. Likewise, it will be interesting to see whether the law society drinks its own Kool-Aid  before launching its next equity initiative.

Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher at the Law Society of Ontario.You can e-mail him at michael@michaelsfirm.ca.

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