Bencher candidate John Nunziata says he thinks the provincial government may have to intervene in the legal profession’s self-regulation model following the bencher election ending April 30.
Several MPPs, including a spokesperson for Attorney General Caroline Mulroney, repeated the same message.
“The Law Society of Ontario has a mandate to regulate lawyers and paralegals in the public interest. Questions regarding the law society, the bencher election and the regulation of lawyers should be directed to the law society. The attorney general looks forward to working together with the law society in the future on legal issues that affect the people of Ontario,” said an email statement.
Nunziata, a former member of Parliament, would not reveal which MPPs he had spoken to.
Still, Nunziata says he thinks that issues such as low voter turnout, a budget deficit and the divide over the statement of principles requirement could draw the attention of Queen’s Park.
“The fact that the public is not on the side of lawyers — because most people have a negative opinion of lawyers — there are politicians that would say, ‘Well, let’s review what’s going on here.’ For one, conservatives do not believe in running deficits in principle,” says Nunziata.
He says the LSO is an outlier compared to professions that are regulated by an appointed board, rather than a large election, such as the one taking place now.
The election model raises several issues around representation, he says.
“There are those that argue if [the LSO] is only to govern in the public interest, why bother having elections? Why not just appoint people?” he says. “Right now, there are lay benchers that the provincial government appoints, and there’s a reason behind that.”
For example, a board that was 50-per-cent women or that represented sole and small practitioners, solicitors and other groups equally, could be achieved through appointing a board, he says. But representation in Convocation does not seem to have worked through the election process, which according to the LSO’s statistics has had voter turnout of less than 40 per cent since the early 2000s.
“It’s important for lawyers to vote, it’s important for the law society to be truly representative of lawyers and paralegals,” he says. “Yes, one of the mandates is to govern in the public interest, but I think there is also an obligation to make sure the needs of lawyers and paralegals are addressed as well.”
Ian Daley is the senior legal counsel for the Real Estate Council of Ontario, the regulatory body for the real estate industry in Ontario, which is structured differently from the LSO.
Daley, who is running for bencher, says he would support continuing the legal profession’s self-regulation model.
“I disagree entirely with changes to the self-regulatory model that the law society currently engages right now — my reason for that is that it’s trying to fix a problem that doesn’t exist. The benchers have effectively governed and run the profession so I don’t think it would be taken away.”
He says the government has ways to hold professional regulators accountable if needed.
“One of the things that RECO does we are accountable to the government. We have to measure our successes and report back. The law society could consider looking at how we can measure and demonstrate how things are being done, and it makes us more accountable,” says Daley. “I’d be more interested in ways to become more accountable and measure successes or areas to improve upon. I’d be more interested in doing that than looking at revamping the entire self-governing model.”
The law society’s governance task force is currently considering options to shrink the number of benchers in Convocation. Several examples put forth for a call for comment by the governance task force suggest decreasing the number of elected benchers, which would proportionately give appointed benchers more sway.
At the time of the call for comment, in November 2018, Mulroney said in a letter that the provincial government “believes that it is vital that governing bodies are streamlined and efficient,” adding that her ministry would “fully endorse efforts to reduce the total number of benchers at Convocation to facilitate quicker and more effective decision-making and cost effectiveness.”
Nunziata points out that the provincial government recently cut the size of Toronto’s city council to 25 members from 47.
One skeptic of the LSO’s governance model has announced a run for office: Anita Anand, a law professor at the University of Toronto, said on April 2 that she is seeking the federal Liberal Party nomination in the riding of Oakville, Ont. Anand’s’ research into the topic was recently publicized through a newspaper article titled “Ontario’s law society needs to address problems in self-regulation.”
“Self-regulation opens the possibility of conflicts of interest: lawyers governing themselves may, in making rules for the profession, make decisions that benefit themselves rather than the general public, who may be unable to protect their own interests,” she wrote in the article. “As a result of these concerns, both Britain and Australia have moved away from self-regulation.”