A task force set up by the law society to look at governance and electoral issues has concluded that reform is needed in order to advance the law society’s public interest mandate and is recommending a reduction in the size of convocation as well as change to the electoral process.
According to a law society spokesperson, the proposed governance changes will increase the board’s ability to make efficient and effective decisions, while protecting the independence of the bar and enhancing public confidence in the law society’s ability to regulate the legal professions.
“The current governance structure has been in place for many years. The size and composition of the board makes it challenging to support timely decisions in the public interest,” the spokesperson said. “The proposed changes would better support the current work and outcomes of the law society as a modern regulator. The changes will bring the organization into line with most other organizations, particularly regulators, that have made similar positive moves forward.”
The recommendations come in the wake of two politically charged bencher elections. In 2019, a group calling itself the “StopSOP” slate campaigned to bring an end to the Law Society of Ontario’s (LSO) contentious statement of principles (SOP). The group, which felt the statement was compelled speech, won a majority of the elected bencher decision that year.
In 2023, it rebranded itself as the “FullStop” team, saying it was committed to returning the LSO to its proper role as a neutral regulator that adheres to its statutory mandate, and was opposed to what it called “woke ideology” at the law society. In response, an alternative group calling itself the “Good Governance Coalition” sprung up and swept the elections.
But the task force’s conclusions are not sitting well with a number of former benchers, who say adoption of the task force’s proposals will lead to fewer voices being heard around the law society’s board table. The task force is recommending a reduction in the size of convocation — the directors who govern the society — to 30 board members, down from its current component of 54. It would be comprised of 14 elected lawyer board members, two elected paralegal board members, 10 board members appointed by a committee within the law society, and four non-licensee public members appointed by the province.
Former bencher Jared Brown is calling those recommendations “a clear effort to move away from self-governance of the legal profession.”
“What you are getting effectively is an appointed board that will have considerable sway over the legal profession — which means that you no longer have elected lawyers regulating themselves,” he said. “What I'm concerned with is that these proposed reforms are motivated by something less than good faith as an effort to preserve the control of the board by a small club within the Good Governance Coalition, and to prevent any outsiders with unique or independent ideas from ever coming onto the board of the law society.”
Philip Horgan
“Let’s look at the composition of the committee who will create this new group of 10 — I like to call it a club, because composition of that club is virtually guaranteed to retain control in the hands of the accepted group, and folks who have different points of view or complaints about how the law society operates will be told they are not welcome here,” said Horgan, who ran an unsuccessful campaign for law society treasurer in 2022. “They are saying we want people who think like us, and after getting that group of 10 appointed we only need five others from the remaining elected category, or government appointment category, to effectively retain control.”
Former bencher Sam Goldstein said the number of seats around the bencher table has increased over time in accordance with population growth in terms of lawyers in Ontario.
“Now what they say is they want to reduce the number of benchers, and then within the 30 remaining benchers they are going to select 10 of them,” he said. “So, they’re giving away people’s representation and ability to choose who represents them — and it’s being done in the name of efficiency. But is this supposed efficiency worth more than reducing the regional representation? And what is perhaps more important is that they are self-selecting a group of benchers.”
In response to the concerns raised, the law society spokesperson said one of the fundamental objectives of the LSO is to “facilitate effective discussion, debate and decision-making by ensuring a diversity of voices and perspectives on the board.”
“Another key objective of the task force is to protect self-regulation and the independence of the bar. The proposed composition retains a majority of lawyers on the board and a majority of elected licensees chosen by the electorate,” the spokesperson said. “In addition, task force members have concluded that the most effective board oversight models, and a best practice in regulatory environments, is to seek the benefit of a new category of board members.”
Those members would be appointed by the board itself, upon the recommendation of an independent committee and based on transparent criteria, the spokesperson said.
“This provides an opportunity to appoint board members who have the backgrounds and skills necessary to ‘round out’ the complement of elected board members,” the spokesperson said. “Diverse board membership will provide a range of skills and experiences in varying practice and professional settings. Board members will understand the competence and conduct expectations of legal professionals and the importance of placing the public interest at the forefront of all decision-making.”
Also part of the suite of recommendations made by the governance task force are changes to the electoral process. The task force said it was “concerned” about the negative impact of group campaigning on individual accountability and on the democracy of law society elections, which it says erodes the professions’ trust in LSO governance. It also said it has received input that the current process is time-consuming, challenging and costly, making it harder for sole practitioners and licensees from smaller firms to be elected.
The task force is proposing one of two options be adopted — either allowing eligible voters to cast only one vote, or eligible voters be able to cast as many votes as there are candidates in their electoral region. The task force is also proposing eight-year term limits for board members — down from the current 12 years — and bencher vacancies be filled through by-elections rather than the current process, where the person in the region with the next highest number of votes obtained in the last general election takes a seat around the board table.
According to the regulator, the proposed regional voting and voting changes will more effectively connect voters and the candidates they elect and make the election process less onerous for both. It said the proposals will make it easier for licensees to understand and participate in voting in the bencher election — and with fewer votes to be cast, voters can select candidates that they know, or believe to be, the best fit for the position.
Brown said the legal profession in Ontario needs to examine the proposals very closely and “understand they represent a divergence from the ancient and hard won right of self-regulation.”
“What you are getting effectively is an appointed board that will have considerable sway over the legal profession,” he said. “This idea that the board is suffering from a lack of skill sets is not borne out by the reality.”
And both Horgan and Goldstein raised concerns about the fact that members of the Good Governance Coalition formed a corporation in 2023 to raise funds and hire a campaign manager. Horgan said the move meant those individuals “were clearly engaging in political activity and had a fiduciary obligation in favour of the corporation that they created.”
“And of course they could argue that was just for the purposes of an election, but I’m struck that this group of Good Governance benchers saw fit to introduce a rather striking — if not radical — change to the way in which benchers are named and elected,” he said. “I don’t recall those proposals being floated as part of their campaign in 2023.”
Goldstein said he felt it was a conflict of interest if someone is a director of an association that is going to raise money for the purposes of an election for benchers.
“The [StopSOP] slate was criticized because people said they all voted in common and were politicizing convocation,” he said. “But by not declaring you have a conflict of interest you’re not independently deliberating upon the issues, and it’s a bit hypocritical to say somehow the slate was not engaging in good governance because it was a political party.”
Bencher Atrisha Lewis, a director of the association, said it was created to assist benchers running as part of the Good Governance Coalition with pooling collective funds for campaign expenses.
“Candidates themselves contributed what they could for the campaign and we accepted donations only from licensees in the province,” she said. “The money was used for campaign expenses such as creation of the website, marketing materials, the mailer, etc.”
And the LSO spokesperson noted there are no restrictions on bencher election campaign funding.
Feedback on the governance proposals are being accepted by the LSO until Jan. 31. All feedback received will be reviewed by the task force to assist in determining whether to request convocation’s approval of the recommendations outlined in the report.
“Our usual practice is to publicly post all submissions received at the conclusion of the consultation review process, unless the respondent specifically asks that the submission not be posted,” the LSO spokesperson said.
For further information, contact the LSO at GovernanceReforms@lso.ca.
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