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Does the size of Convocation need to shrink?

Article by Carolyn Gruske

First published in Law Times -

Lawyers and paralegals are waging campaigns to be among the 45 people elected as benchers, but if a few of the candidates have their way, there won’t be nearly as many people representing the legal profession at Convocation in the future as there are now.

“It’s my position that we have too many benchers,” says Rebecca Durcan, a partner at Steinecke Maciura LeBlanc in Toronto, who has sat as a bencher since August.

She says the number of elected benchers plus the eight publicly appointed members and the ex officio and honorary benchers results in “a very, very large and unwieldy board.” “In light of the decisions that this board makes — regulatory decisions, policy decisions — having that many people at the table, I believe, is simply too many,” she says.

Durcan isn’t the only person running for election who has made the size of Convocation part of their election platform. Barbara Murchie, a partner and trademark agent at Bennett Jones LLP, and Megan Shortreed, a partner at Paliare Roland Rosenberg Rothstein LLP, among other candidates, have given the size of Convocation some consideration.

Durcan says the current trend in the professional regulation sphere is for organizations to adopt a “risk-based approach” and to ensure regulatory members demonstrate “specific competencies and training.” She also says it’s much more common to see fewer people sitting around the decision-making table. 

“I know that the trend is for regulatory boards to really take a hard look at their size and determine how many are actually needed to do the job. The resources out there [demonstrate that size] is based on a magic number of somewhere between seven and 15,” says Durcan, who is experienced in risk management and works as counsel to several Ontario regulators. “When you look at our numbers, by whatever metric you use, we are so outside of the standard of what is needed.”

Murchie, who has served as a bencher for eight years and is running for her final term, says Convocation is “large.”

“It could be reduced somewhat,” she says.

She says cutting the number of lawyer benchers to 30 — 15 from Toronto and 15 from the rest of Ontario — may make for a more manageable number while still maintaining diversity and wide provincial representation.

“I do think we could have fewer benchers, but I would not like to see us reduced to a board-sized level,” says Murchie. “I think that we are a board in one way. And from that perspective, a smaller group would be much more manageable, but I also think it’s important we have perspective from across the province and from different areas of practice and from lawyers who serve different demographics of people. So, I think we're better off with a larger than normal board arrangement.”

One concern she has about cutting back the number of benchers is that it would, by extension, reduce the number of people available to serve on committees and working groups, which would likely lead to more involvement by law society staff members.

Ensuring that the lawyers who do serve as benchers “have a meaningful commitment to ethical governance in the public interest, which is the mandate” [of the law society] should be the primary focus in any election, says Shortreed, who is running for the first time. To that end, part of her election platform includes thoughts about bencher numbers and obligations. She says she supports “further governance reform to deal with both the size and competency of Convocation.

“I practice professional regulation and have advised regulators for my entire career. And I can tell you very few of the other professions have a council the size of the LSO’s Convocation, particularly when you take into account the large number of ex officio and emeritus benchers. So, it has a tendency to not be efficient and to add cost,” she says.

“That has been an issue that's been looked at by past governance and reform task forces, and there [have] been some steps taken, like some term limits put in place and some adjustments made to speaking rights of unelected benchers, but I do believe there’s more work to do. At the same time, it has to be balanced with a need for diversity of perspectives.”

Shortreed says she’s not for “dramatic change” such as “drastically limiting the number of benchers” or moving toward an entirely appointment-based system. She says there are benefits to having a large number of candidates run, including allowing for a large number of opportunities for representation to occur.

Although Anita Anand isn’t running for election as a bencher, she has some thoughts on the size. As the J.R. Kimber chair in investor Protection and Corporate Governance and the academic director of the Centre for the Legal Profession and Program on Ethics in Law and Business at the University of Toronto’s Faculty of Law, Anand says Convocation is “an overly large decision-making body, and my view is that that structure should be re-examined in the context of re-examining self-regulation of the legal profession on a larger scale.”

Anand says people should be asking bigger questions than how many benchers should be elected.

“The question is ‘Does the examination of self-regulation begin at the law society? Or does it begin with the province of Ontario [with] the attorney general’s office?’ I think it would have to be a co-operative effort,” she says. “We can't have a self-regulatory body making reform suggestions and adopting reforms for itself alone. They are a product of legislation. And so the question is whether the legislative process needs to be part of this analysis.”

Not everyone running for bencher believes that the size of Convocation needs to be cut down or that there need to be changes to how benchers are chosen. John Callaghan, a partner at Gowling WLG, for example, says the current system works.

“The governance of lawyers, at least in Canada, has always been recognized to be a very important aspect of our civil society, and the Supreme Court of Canada has said that. Exactly what they said, is ‘The independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense,’” he says, citing A.G. Can. v. Law Society of B.C., 1982.

Callaghan says Convocation can’t really be viewed in the same way as a typical board of directors and needs to maintain its size to ensure there is representation from across the province and the diversity necessary to represent all manner of people.

Callaghan, who is running for his third term, says the ability for all benchers to voice their opinions — be they voices of assent or dissent — is one of the things that makes Convocation different from a board of directors.

“Not all [Convocation] decisions are universally accepted. Those who preach the board ethos sometimes forget the fact that boards generally speak with one voice and that, while Convocation passes [motions] on a majority basis and then the law society takes its direction from Convocation, it doesn't mean that there aren't voices out there that might disagree with it. This is essentially a public entity where dissent is healthy,” he says.

“That’s why it has a wide group of views, so that it's not just captive to a small group of like-minded people.”

Durcan says that while she has been “really impressed by the quality of discourse” she has heard as a bencher so far, she is concerned that the voices of the public members can be muted if there are too many lawyers at Convocation, especially if they act as advocates for the profession and not protectors of the public good. Additionally, she is worried that those with specific expertise in the questions being addressed won’t be heard.

While Durcan says a board of around 20 might be a workable number, reducing the number of benchers isn’t her only goal. Ideally, she says, the law society should consider eliminating elections and moving toward a system where benchers are selected by “a competency-based appointment process,” where factors such as expertise and diversity would be taken into account.

Under this model, she proposes non-bencher lawyers would volunteer to take part in committees and working groups based on their interests and expertise, while the benchers — who wouldn’t sit on the committees — would make the final policy decisions.

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