Some lawyers are running for bencher election by campaigning on platforms that promote increasing the number of bencher solicitors, after underscoring concerns that solicitors don’t have enough of a voice at Convocation. The issue is emerging during a race by 145 lawyer and paralegal candidates for 44 bencher seats at the Law Society of Ontario’s board.
Different lawyers say they have put their names forward for the April 30 election, because they believe it’s up to them as solicitors to advocate for policies and governance that reflect the way solicitors conduct their businesses and practise law.
“I find that more and more, some decisions coming from the law society tell me how to practise law in the abstract, in the perfect world, but they're not here, at five minutes to [5 p.m.] on a Friday afternoon when my clients are waiting for their keys, and I have to figure out how to get funds into the vendor’s counsel’s trust account quickly enough to be able to close [a] deal,” says Sylvie Patenaude, a partner at Sicotte Guilbault in Ottawa, who is standing for her first bencher election.
Patenaude says the rules the law society has put in place regarding fund transfer protocols and transactional procedures make it difficult for her to finalize real estate deals, especially if there is a geographical distance between the two parties involved.
“Normally, [the law society doesn't] want you doing a direct deposit of all of the sale proceeds into the vendor’s lawyer’s trust account, especially if there's a mortgage registered on title because normally what they want you to do is draft a certified cheque or a bank draft to the bank in the amount that's payable to discharge the mortgage and then the balance of the funds can be given to the vendor’s solicitor,” says Patenaude.
She adds that the requirement to physically transfer monetary instruments becomes problematic in instances when she doesn’t receive the funds from the purchaser’s bank until late in the day — too late to have a draft drawn up and messengered to the seller’s lawyer in a different city in a different part of the province.
“I need to be able to direct deposit into his account and, as a solicitor in good standing, I have to be able to rely on his undertaking to me to pay off that mortgage. But that's not a practical approach that's suggested by the law society.”
Ian Speers, a sole practitioner in Toronto who focuses on real estate law, says that having more benchers with experience acting as solicitors would assist with setting policies and driving discussions that are important to solicitors.
“Litigators tend to dominate Convocation . . . so [solicitors] do tend to feel that when it comes to setting standards, they're being set by someone whose experience is litigating. The governors don't understand the governed,” he said.
Speers, who is also running in his first bencher election, says that increasing the number of solicitors would help bring attention to issues that are important for solicitors — issues that could be ignored if barristers dominate Convocation.
“Things take a long time to get addressed on solicitor issues. It’s not necessarily bad stuff but something where we have a pressing issue like fund transfer protocols on real estate closings. The most recent mortgage discharge guideline dates from 1992 and we've been making noises at the OBA to amend that for the last five or six years,” he says.
Speers also says that having more solicitors serving as benchers would lead to fairer disciplinary hearings, mainly because they would understand the business practices and the issues faced by the lawyers involved. Currently, he said some of the decisions don’t necessarily make sense to people doing more transactional work.
“We’ll look at something and say, ‘Why did you disbar somebody here?’ and look at another and say, ‘You should have taken their ticket on the spot,’” he says.
Antoine L. Collins, principal lawyer at The Law Firm of Antoine L. Collins in Ottawa, who got his start in law in the U.S. prosecuting domestic violence and child abuse cases in Baltimore, says that not seeing enough solicitors as benchers was one of the reasons he is running in his first bencher election.
“What really triggered my decision to run really was the fact that when I looked across the landscape of our legal profession and our governing body, I didn’t feel that it represented not only Ontario but it didn’t represent our profession as a whole. So, I didn’t see a lot of diversity. I didn’t see a lot of solicitors. There didn’t seem to be a lot of the talent our profession has. Then what really solidified it was the controversy around the SOP [statement of principles],” says Collins, who opened his Ontario practice in May 2018.
Collins says the way solicitors manage their business is usually different from the way barristers run theirs, and that difference should be reflected in law society oversight.
“When it comes to audits, when it comes to practice management reviews or complaints or hearings, I think that because people aren't educated on the way we run a business as solicitors, it becomes a problem. So, I think there needs to be more representation of solicitors so the rest of the benchers can learn exactly what we do and how we do it and how our practice is a little bit different from the barristers,” he says.
While the Law Society of Ontario does keep statistics related to bencher elections, it has no records about how many solicitors or how many barristers ran for bencher or served as bencher, primarily because not every lawyer who runs indicates whether they are a solicitor or a barrister or somebody whose practice involves both transactional work and litigation.
Sidney H. Troister, a certified specialist in real estate law and a senior partner in the commercial real estate group at Toronto-based Torkin Manes LLP, is a current bencher who is running again.Troister says that, according to his calculations, of the “40 elected benchers today there are six who are solicitors,” some of whom are not running again.
Troister says it’s not just real estate solicitors who are under-represented but also other groups who appear to be lacking representation.
He says that full-time family lawyers and sole practitioners, especially solicitors from small towns across the province, don’t have enough of a voice at Convocation.
Partly, he says, this is due to the burdens of travelling to Toronto for meetings, but another factor is that the time commitment required by benchers is onerous. He estimates that benchers spend between 300 and 800 hours per year performing their duties.
“I'll put it very bluntly that somebody trying to make a living in Huntsville, Ont. isn’t going to apply to be a bencher. And I'll tell you why — first of all, if I asked my fellow benchers, they would say it probably takes anywhere between 300 and 800 hours a year. That is huge,” he says, adding that reviewing materials for meetings takes hours to complete.
Even if solicitors — especially those from less populated parts of the province — want to run for bencher, Troister says they’ll find it an uphill challenge because they aren’t well known among the general voting population.
“The bencher election is, in many respects, a popularity contest, and who do people know? Barristers. Litigators have a tendency to have a higher profile in the profession than solicitors. They go to court and get their names in the paper . . . whereas solicitors are doing their transactional work,” he says.
“[S]olicitors still need to be represented at Convocation because they are being regulated by the law society and the law society is making decisions that affect the way they may practice.”