While almost 100 lawyers have put their name forward to run for bencher of the Law Society of Upper Canada, only a handful of those are in-house or public sector lawyers.
But an ambitious few say it’s time there was greater representation from the in-house bar at the professional regulator.
“In-house lawyers have traditionally been under-represented at Convocation. We need more in-house benchers,” says Dan Revington, general counsel at the Workplace Safety & Insurance Appeals Tribunal who says in-house lawyers, by virtue of what they do, have consensus building skills.
“Having practised both in a law firm and in-house, I believe in-house counsel have some significant advantages when it comes to being a bencher,” says Revington, who has been at the WSIAT for 23 years, 15 of those as general counsel.
“Lawyers typically are not trained in management, however in-house lawyers often find themselves assuming a managerial role on a day-to-day basis, as well as having to constantly work in committees and with other departments.”
Revington has volunteered on committees such as the specialist certification committee and says he has an interest in working on issues including access to justice and paralegal regulation.
Kimberly Graber, head of legal services for DHL Canada, says in-house lawyers offer a perspective that comes from a different lens than most of the benchers at Convocation.
“The issues faced by Convocation in the coming term are varied and the decisions made will affect all members despite their individual roles,” says Graber, who moved in-house in 2006. Apart from a break while she completed her MBA, she has been in-house ever since.
“I have a particular interest in issues of access to justice, equity and aboriginal issues, as well as the issue of inter-jurisdictional mobility,” she says.
Public sector lawyers also offer a similar perspective to corporate counsel. Sandra Nishikawa, who is counsel with the Crown law office of the Ministry of the Attorney General, handles civil litigation for the AG. Prior to going in-house in 2003 she was an associate at Shearman & Sterling LLP in New York.
Nishikawa has been part of the equity advisory group of the law society for seven years.
“I thought, well, I’m pretty well placed to step up and run because I’m experienced at how things work there,” says Nishikawa, who has also been part of the action group on access to justice work.
“I bring a different perspective as a public sector lawyer and it is a perspective that is under-represented. Most benchers have been from private firms and are largely litigators. I think the full diversity of the profession should be represented at Convocation both in terms of gender, race, and also in other areas of practice, otherwise some concerns and perspectives don’t get raised or heard.”
Access to justice is a big issue for Nishikawa.
“I think people have come to a point where we recognize it’s a crisis situation with respect to access to justice. I think it’s great the law society is taking a more proactive role and I’d like to enhance that and ensure it continues. It’s part of our responsibility of regulating in the public interest.”
She also hopes more younger lawyers will vote and become more engaged in the work of the law society.
Diversity and equity issues are a top concern for David Smagata, vice president claims and underwriting, and chief legal officer at DAS Canada. He began his career in a boutique insurance defence firm and has worked with several large national and international insurance companies in the area of insurance defence litigation and claims.
DAS is a “start-up” insurance company that launched about five years ago and offers legal expense insurance. Smagata has been in the role of CLO for about a year now. He went in-house to Liberty Mutual after working in private practice at McCague Borlack LLP. He also worked at Aviva Canada running its in-house department before going to DAS.
Smagata has been involved with the law society on the equity advisory group and was chairman of the equity advisory group, which advises the bencher committee on equity and aboriginal issues.
“I really enjoyed that work and running for bencher is something that’s always been in the back of my mind. I know very few in-house counsel are benchers. I see that often — a lot of lawyers who are in-house who don’t feel represented and say they aren’t voting,” he says.
Incumbent bencher candidate and public sector lawyer Jeffrey Lem says for in-house lawyers it can be difficult to carve out the time needed to be a dedicated bencher.
“Of all of the lawyers out there, it is most difficult for in-house counsel and government lawyers to participate in the bencher process,” says Lem, who also wants to see more solicitors get involved at Convocation. “In-house counsel are an integral part of the day-to-day business of their clients. I live government all day long.”
Lem says there is “tons” of work to be done in 20 different committees and private practitioners have more flexibility to do that work.
“That’s what makes it a tough time commitment,” says Lem, who is on five committees at the law society. “Our employers also tend not to see the value to the profession. Firms understand the value of having a bencher in the ranks. For a lawyer working in-house, it’s a tougher sell.”
Smagata acknowledges it’s going to require considerable time but is prepared to juggle his schedule to make it happen.
“It will be challenging, but it’s a very supportive work environment here and it is important enough to make those sacrifices,” says Smagata, who is also interested in the current debate around alternative business structures.
“Being part of a large European company I have seen, through the recession, how the practice of law has changed,” he says. “I’ve seen work environments where ABS has been put in and we need to look at overall, how can we do this.”
Smagata’s other concern is the introduction of the Law Practice Program and how the law society deals with the articling crisis.
“Nobody stepped back to look at it from an equity and diversity perspective. Are the students who can’t find articles those who are underrepresented already? We need to make sure we don’t erode what we’ve already accomplished in terms of equity and diversity at the law society. I do think the professional program versus lieu of articles was not well thought out in terms of long term ramifications.”
Lem, who was in private practice when first elected, says he is running again because he says it’s the most “efficient” way to give back to the profession.
“It’s important work. How do we best give back? Helping our profession and what’s the best way to do that? Being a bencher is one way and that’s why I do it,” he says.
Lem was on the ABS task force and one of the few who is voting no to it.
“I don’t approve of ABS as a general rule, for lots of reasons. Outside of the criminal law bar and the personal injury law bar, I’m one of the few guys who are saying no and I’ve made up my mind,” he says.
“I’m not convinced of the benefits. The biggest benefit touted is access to justice. In any way you define access to justice, ABS will do nothing. Will it create capital and innovation? Yes, but it also has to be regulated. Do you have any idea how much regulation is going to be required to make ABS a manageable beast?”
Lem says the access to justice argument is “almost an offensive argument.”
“We have a whole segment of the population who can’t afford legal services and ABS won’t address any of that,” says Lem.