LSO strips rights of honorary members after contentious governance debate

In an effort to improve the efficiency of its governance, the Law Society of Ontario on Friday approved changes to limit the rights of honorary members to contribute to debates.

The LSO will eliminate emeritus benchers starting next year, and many ex-officio benchers will lose their rights to speak at Convocation, shifting the balance of power among the top decision-makers that regulate Ontario lawyers.

The changes to the roles of former benchers are part of a governance reform package that was brought before the law society benchers on Friday by Bencher Janet Leiper, a Toronto-based sole practitioner and chairwoman of the LSO’s Governance Task Force.

The committee’s six recommendations had a mixed reception at Convocation, where debate lasted nearly three hours. The LSO’s professional regulation committee was able to pass some reforms aimed at streamlining Convocation: Ending the role of “emeritus bencher,” axing Convocation rights of ex-officio benchers who served 16 years or more in office, barring voting rights for former treasurers and terminating Convocation rights for former attorneys general.

But the LSO also struck down some initiatives, such as a proposal to shrink bencher term limits to eight years, down from 12 years. The role of emeritus treasurer, too, remains intact after the vote, despite the committee’s recommendation to eliminate the office. Benchers also tabled a proposed bencher code of conduct.

The approved changes will come into effect when new benchers take office after an election on April 30, 2019.

Eliminating the rights and privileges of ex-officio benchers that have served 16 years in elected office was the most contentious issue during the vote, with 29 benchers voting to eliminate the privileges and 27 benchers voting to keep the privileges.

Both those for and against the proposals raised concerns about maintaining a diverse set of voices in Convocation.

Several former LSO treasurers spoke at Convocation about the role of institutional memory, including former treasurer and retired judge Robert Armstrong, Harvey Strosberg, senior partner at Strosberg Sasso Sutts LLP, and Vern Krishna, counsel at TaxChambers LLP in Toronto and law professor at the University of Ottawa.

Armstrong, in particular, was critical of the composition of the governance committee, which did not include any so-called life benchers. The professional regulation committee, which was formed in September 2016 to ensure “efficiency and effectiveness in Law Society governance,” also includes benchers Christopher Bredt, Janis Criger, Gisèle Chrétien, Dianne Corbiere, Michelle Haigh, Jacqueline Horvat, Gina Papageorgiou, Sidney Troister and Peter Wardle.

Wardle, an associate counsel at Singleton Urquhart Reynolds Vogel LLP, however, said that criticism on the lack of consultation with life benchers was a "red herring.” He said the committee consulted widely and received comments from a number of life benchers and it was simply not true that the process was flawed.

Another criticism of the proposed reforms is that they would effectively silence the older members of Convocation. Bencher Bradley Wright, who practises in Ottawa, and Bencher Rocco Galati, a sole practitioner in Toronto, both said removing the rights of former benchers was akin to ageism.

Committee member Gina Papageorgiou, counsel of the Class Proceedings Committee at the Law Foundation of Ontario and deputy judge of the Small Claims Court, fired back at the suggestion of ageism, saying at Convocation that "if anything, the ageism" at the LSO was that there is not a proper representation of younger benchers. Papageorgiou added that the elected benchers brought more diverse perspectives to Convocation and that it was important to continue building that diversity to attract younger benchers. Bencher Christopher Bredt, another committee member and a senior litigation partner at Borden Ladner Gervais LLP in Toronto, said the governance reforms so far have worked in improving diversity.

Heather Ross, a life bencher who will likely be phased out of Convocation by the changes, also said that the regulating body must face that the profession is getting more diverse. Ross’ son, Quinn, announced earlier this autumn that he plans to run for bencher.

Bencher Julian Falconer of Falconers LLP, which has offices in Toronto and Thunder Bay, Ont., said at Convocation that the debate highlighted diverging views of Convocation, with some seeing it as a parliamentary body and others seeing it as a corporate board.
Over the past decade, the law society has moved away from lifetime membership, introducing term limits in 2009. The Governance Task Force’s latest report said it favours an “incremental” approach to reform that supports “the infusion of fresh views and perspectives.”

“As for the potential risk of losing institutional memory if the 12-year term is ended, apart from the difficulty in quantifying institutional memory, the Task Force’s view is that there is no optimum number of long-serving benchers or a particular qualification on the part of benchers that will ensure that memory is preserved,” the report said. “With the numbers of benchers who serve for the maximum number of years, the risk of losing institutional memory should not be an overriding concern.”

At the outset of Friday’s Convocation, Leiper said the proposals would have reduced Convocation’s core membership to 53 members, down from 93 members (although only 70 benchers participate regularly at the Law Society, the governance committee report said).

The report said that there were 40 ex-officio benchers, including the current treasurer, the current attorney general, former treasurers from before 2015 and former benchers who served for at least 16 years. Seventeen of the ex-officio benchers “participate regularly,” the report said.

The prospect of reducing the number of benchers in Convocation has garnered support from the Ministry of the Attorney General, which weighed in in a letter at the beginning of November. The Ontario Bar Association said in a submission to the law society that “members were broadly supportive of a smaller Convocation,” but that there were “significant concerns about the potential effects of reducing the number of elected benchers, especially the potential for adverse impacts on diversity and regional representation.” The Federation of Ontario Law Associations also emphasized the importance of elected members.

The law society said in an announcement on Friday that there are further governance reform proposals pending, including: ending all ex-officio bencher positions in Convocation, reducing the number of elected benchers, modifying the length of the treasurer’s term of office and changes to committee size, structure and meeting times.