There are some major issues facing the Law Society and the profession. Here’s where I stand on some of them.
I have a long-standing commitment to making the profession more diverse, and to supporting women and racialized lawyers in the profession. Many years ago, when I was in charge of recruitment at my large law firm, I took the position that “fit” was a four letter word – urging people to recognize the need to hire and support lawyers who reflect our whole community. I spoke out at early meetings on this in the 1990s.
As a Bencher, I have been a member of the Equity and Aboriginal Initiatives Committee, supporting the Justicia Project, the Parental Leave Assistance Program, and other initiatives to support and retain women and aboriginal, racialized and LGBTQ lawyers. The Law Society must continue to be pro-active here, maintaining and expanding its work. The consultation on racialized lawyers is an important current initiative. In my years as a Trustee and now Chair of the Law Foundation, we have made support for aboriginal lawyers and improvements in access to justice for First Nations peoples a priority.
The Trinity Western decision was an important moment in signalling our commitment to equity and diversity. I spoke out against accrediting it, as to do so would have created an approved track to licensing that was discriminatory, thereby making us discriminatory. While freedom of religion is important and must be respected, so too with equality rights. When they clash because the religious views discriminate, we should not approve, or become part, of that discrimination. I am proud that other provinces followed our lead in rejecting TWU.
Human Rights Monitoring Group
A further indication of my commitment to diversity is seen in my commitment to human rights. For the past several years I have chaired the Human Rights Monitoring Group – which reports to the Equity Committee. The Monitoring Group speaks out against threats to lawyers, judges and the rule of law in Canada and around the world. This voice of the Law Society – which has as part of its statutory mandate the role of protecting the rule of law - is heard around the world. In February 2015 we granted the first Human Rights Award to Irwin Cotler.
Law Practice Program/Articling
We had a major debate about this a few years ago. Articling positions could not meet the demands of new entrants into our licensing process. At the time, the number of articling positions was declining despite the growing number of lawyers in Ontario. The articling experience was not strictly regulated, and student experiences ranged widely. After a lengthy debate, Convocation voted to create a Law Practice Program (LPP) – an alternative to articling that would involve a 4-month experiential learning course and a 4-month placement in a law firm, clinic or other supervised legal environment. I opposed the creation of the LPP as a second-tier track to licensing, creating what will be perceived to be a second-class group of licensees who could not obtain paid articles, and would be burdened by additional expenses and likely have an unpaid placement.
The LPP started in the fall of 2014 as a 3-year pilot project. The experiential course was contracted out to Ryerson University and, in French, to the University of Ottawa. Their courses were taught for the first time last fall. The students are now doing their placements.
I have asked for reports to Convocation on how the LPP course was received, and will continue to press for them. Very little has been provided so far. It is unclear how well the course achieved its purpose. Many students are working in unpaid placements. Although a few hundred students enrolled in 2014-2015, we will have to see how many are prepared to use this path to licensing next year. There is also concern that the students in the LPP are disproportionately racialized.
We’ll need to take a hard look at the LPP over the next couple of years and, as I say in my Election Statement, if it isn’t working we mustn’t be afraid to dump it.
In the meantime, the Law Society has made improvements to its oversight of the articling experience. These are tough issues that need to be addressed in a positive and principled way, focusing on ensuring competency training and public protection.
I currently Chair the Proceedings Authorization Committee (PAC), which decides which cases should go to a Discipline Hearing. As a result, I cannot currently sit on discipline matters, although I heard many cases before being appointed Chair of PAC.
I have been a strong proponent of making the discipline process more open and transparent. The Law Society has been criticized lately for having too much secrecy respecting its investigations and lawyers who pose a danger to the public. Transparency is always good – public scrutiny ensures fairness. I am pressing for greater transparency when it comes to identifying those lawyers who are a threat to the public. If the Law Society isn’t more proactive here, we will rightly be criticized for protecting our own, and not protecting the public.
There have been some high-profile, lengthy prosecutions which have been controversial in the last few years. I have not been involved in them, but share some of the concerns raised about the propriety and fairness of proceeding with them, and the expense involved. We need to be prudent and strategic in making sure we pursue the cases that are in the public interest and maintain our core standards in order to protect the public.
The Tribunal reform over the past few years has been an important and positive step. The appointment of a professional Chair, and the growing use of experienced non-Bencher adjudicators is raising the standards of our process, and decisions.
Access to Justice
Lack of access to legal services is the greatest threat to the independence of the profession. It is also where we can all do the most good. The role of the Law Society is critical here. As the regulator, however, it is not a service provider. What it can do is promote access to justice initiatives, and play a facilitator and championing role. Some of that has at last begun. The Advisory Group initiative has brought together numerous A2J organizations to find synergies and common ground to work together. The Access to Justice Committee is developing communication initiatives to address the lack of public knowledge about when, where and how to obtain legal services. And the Law Society supports organizations through in-kind contributions and institutional back-up.
But we can do more. The Law Society must speak out about the continued underfunding of Legal Aid Ontario, support community legal clinics, and do more to address the lack of legal services in rural and remote areas, and the linguistic challenges of providing legal services in a province where so many different languages are spoken. Pro bono is great, but it is not the answer. Government cannot be let off the hook when it comes to funding access to justice.
I have been involved in access to justice issues throughout my career. As a young criminal lawyer I regularly took on legal aid files. I have worked pro bono with clinics on children’s rights issues, including cases such as the Canadian Foundation for Children Youth and the Law v. Canada (Charter challenge of the corporal punishment defence). I was a founding Director of Pro Bono Law Ontario, and am currently Chair of the Law Foundation of Ontario and the Co-chair of the Law Society’s Access to Justice Committee. We are making headway, but there is much more to be done. I want to continue to lead in this area and make sure the Law Society stays on the right track.
Overall, it seems the experiment with regulating paralegals is working. There is a role for paralegals in helping people in underserviced legal areas, meeting access to justice needs. But we must keep their scope of practice contained, and be vigilant about enforcing it to protect the public.
Alternative Business Structures
The Law Society has been looking at this over the past couple of years. This seems to be due to economic pressure from accounting firms and the public markets, and because rules have loosened elsewhere, such as in Australia and the UK. I remain unconvinced that there should be any changes to permit legal services to be provided to clients through non-lawyer owned businesses. I see this as an access to justice issue, and have seen nothing to indicate that loosening our rules to permit different business structures involving non-lawyers will advance access to justice.