Being a Bencher
What You Should Know About Convocation Before You Vote for Bencher The Observations of A Two Term Bencher
Sidney H. Troister, LSM
Torkin Manes LLP
Good Governance Coalition Candidate for Bencher
A Bit of History and Context
I have been a bencher for 8 years. In my first term, the benchers got elected mostly on their reputations and their professional profiles and many were leaders in their practice areas or local regions. There were many differing opinions on policy, most work was done in broadly based committees, everyone was independent of everyone else, debate in convocation was wide ranging, civil and respectful even when benchers disagreed vehemently on policy.
In 2016, the benchers voted in favour of the recommendations of a long studied Challenges for Racialized Lawyers report. I was one of a very few benchers that did not support its most contentious issue, the requirement that all lawyers have a personal Statement of Principles.
In 2019, the Stop SOP slate was formed by a small group of lawyers which had as its rationale, the repeal of the Statement of Principles (SOP). That was their election platform. Stop the Statement of Principles. 22 slate members out of 40 lawyer benchers were elected in a relatively small voter turnout. I even voted for a number of them because I thought the SOP was a very bad idea. How did they win? By splitting the votes among all the other candidates and coming up the middle with the most votes.
But it did not take long for me to realize that after repealing the SOP, they took on a new mantra designed to reverse or limit many of the policies and programmes of the Law Society, all in the interest of cutting lawyers’ annual fees. What they did not seem to care about were the consequences of such cuts on two important groups: lawyers and the public.
What is the LSO For?
Now, let’s remember, that the LSO’s mandate is not the protection of lawyers’ interests but the protection of the public interest. Lawyers’ interests are represented by the OBA, FOLA1 and local law associations. The Law Society regulates lawyers and paralegals in the public interest and statutorily is mandated to ensure the competence and ethical behaviour of lawyers and to facilitate access to justice. That is its core mandate dictated by the Law Society Act. Its core mandate is not just competence as it relates to licensing and discipline as some might say.
So how is the mandate fulfilled?
The LSO benchers are responsible for setting policy and approving all programmes; the staff at the LSO implement benchers’ policy decisions. That is the framework. That is how the Law Society works. What was the Problem with the StopStoppers?
So, many of the 22 Stop Sop benchers, with little or no knowledge of the role of the Law Society or the fiduciary duty that members of its board of governors or directors have to the organization began to, in my view, try to disrupt the operation and policies of the organization. Some have little or no regard to meeting decorum, (civility if you will), they mainly vote as a bloc (apparently pursuant to some pact among them), even on the most irresponsible motions. Some appear not to show much independent thinking and some do little or none of the work that I can see, but tend to go along for the ride. They are great critics of what exists from a cost point of view, but many lack any insight into the real challenges facing the legal profession and few lack any creativity for solutions. Again, cut fees and ignore the consequences. Here are a couple of examples:
Example 1: Some advocated for a 25% cut in annual fees across the board. A nice idea but where are the cuts to be made? They offered no constructive or feasible suggestions. And remember, policy and programme decisions must come from the board so it is up to Convocation to decide where to cut. They speak of “bloat” and “mission creep” without detail but offer no solutions to their complaints. They don’t even explain what they mean. A 25% proposed cut with no consideration of the consequences? That in my view was irresponsible. And when that did not succeed, they tried it again with a 10% cut. Again, no ideas about consequences. And what was the result? A 10% cut to LiRN2 which funds the valuable law library and practice resource centres for lawyers across the province. I will talk later about what programmes are at risk.
Example 2: A member of the board made a request for documents going back 8 years related to the Challenges for Racialized Licensees report. Granted, he did not like the report and spent untold hours analyzing the data. It was always unclear to me what his goal was: prove that the report was not based on good data or analysis and that the benchers from 2016 that voted for it were fools, or simply have the recommendations repealed. Many documents no longer exist, and most are irrelevant if his goal was to simply repeal the recommendations. He could have moved to repeal some or all of the recommendations but instead, he chose to sue the Law Society.3 I am not a corporate lawyer but I know that directors of a corporation have a fiduciary duty to the organization and do not sue the organization on which they sit as directors. That bencher is running for re-election with the Full Stoppers.
My Experience Doing the Law Society’s Budget
I am the Chair of the Audit and Finance committee, the committee that recommends approval of the annual budget for the Law Society and in turn, what the annual fees that lawyers and paralegals fees will be for the next year. The budget process takes months, starting in June of each year when the benchers essentially give the staff the marching orders as to where to allocate funds. Just so you know, the LSO bylaws require that all programmes, including cancelling, enhancing, or reducing them require the decision of Convocation. The Audit and finance Committee has 12 members, including 4 slate members and 3 lay benchers.
We laboured over the budget, we held several committee meetings and held a bencher information session for all benchers to review all of the details of the budget. Every bencher knew what was in the budget. At no time in that process did any bencher, committee member or otherwise, ever mention “bloat” or “mission creep” or “let’s take a scalpel” to the budget. Never! The LSO bylaws require that the budget for the next year be approved by November 30.
At our October committee meeting, the committee members present of which 3 were slate members unanimously approved the budget. The budget involved 3 increases to the annual fees per lawyer: $17 for county libraries, $89 to shore up the compensation fund that covers the theft by lawyers of client funds, and $62 for a general operational increase to reflect increased costs including a $10 allocation for a new programme to ensure that new solo practitioners can run a safe and careful practice. The Fullstoppers say that we approved a 9% increase (which is too expensive) but they are careful not to say that the bulk of it was for libraries and more than half of it was to cover the Compensation Fund.
The $62 operating increase was less than 4%, slightly more than half of 7% inflation. One month before the deadline to have an approved budget, members of slate moved against the budget claiming there should be no increase at all.
One might ask the slate folks: Where was the money to come from to cover the Compensation Fund? It was absolutely necessary (we had some big misappropriations by 3 crooked lawyers and need to shore up the fund by $5,000,0004 ). Inflation was taking its toll and convocation has already approved the new Practice Essentials programme to help new lawyers entering sole practice. We also had to fund the great work being done by LIRN to bring extra resources to libraries across the province. Where was the money to come from if their motion succeeded?
Apparently they did not care. They had no ideas as to what programmes should be cut and remember, cuts would have had to be approved by Convocation. 21 of the 22 slate members and 2 benchers who align with them voted in favour of this irresponsible motion. And what annoyed me most, two of the members of the Audit and Finance committee who are part of the slate, after they approved the budget in committee, voted to support the zero increase budget. I was betrayed by these guys who had no hesitation about stabbing the hard work that staff and the committee did in preparing this budget in the back.
Things I Can’t Talk About.
There is so much more that could be said about the last 4 years with most of the StopSop slate members in one way or another but I cannot because of my obligations of confidentiality. Needless to say, some disregard the Bencher Code of Conduct (a code of conduct which every corporate board has or should have), ignore or don’t care about safety issues at Osgoode Hall during Covid, and act disrespectfully at Convocation. And it is worse when we are in camera.
The Full Stoppers Spread Misinformation and are Fear Mongering.
As for the Full Stop campaign for bencher, I think that it is based on fear mongering and fake news. Here are three examples:
Example 1: The coalition is big establishment. What does that even mean? Big firm? Other than 9 candidates from larger and mid-sized (mostly self-made) firms, the coalition candidates are solos and small firm practitioners from every corner of the province including litigators, commercial lawyers, family lawyers, criminal lawyers, corporate counsel or academics —even a couple of real estate lawyers like me. We are all lawyers working in a profession that we are proud of and contribute to in many ways.
Old school establishment? Pardon me but look at the diversity and the ages of the candidates. The Coalition is not old school. People like me were never part of the establishment and still aren't. I could not get hired by old white law firms when I was a young lawyer. Jews and women were just not right for old establishment. I know about old school and this Coalition ain’t it. Look at the demographics of the Coalition. Lots of women and people of colour and practicing all kinds of law. Give me a break. Big government? A meaningless bit of nonsense. You want to see old school? Look at the Full Stop candidates and what they stand for. Who are their leaders? That is reactionary old school.
The Coalition candidates are an impressive group of leaders in their own right with leadership history in a variety of organizations. As for the Full Stoppers, they have very little profile that I know of in the legal community. No names. Is this who you want for leadership and decision making? It scares me.
Example 2: Fear the return of the SOP. No, the SOP is dead. No one is bringing it back. Conrad Black, presumably a friend of theirs said that the Coalition “pledged” to bring back the SOP. Either he did not do his homework or he was fed a lie. The Coalition to a person (and probably every other bencher candidate) is committed that the SOP or anything like it is dead.
Eliminate equity programming. Eliminate “Woke”. The Law Society has been Woke for over 150 years. They once admitted a woman, then the Catholics, then the Italians, the Greeks, the Jews, then lots more women and then lots of people of colour. Who are these Fullstoppers afraid of? They call it Woke. I am not afraid to call it liberalism and inclusion. But for, I would never have been allowed to be a lawyer. The claim is insulting.
Example 3: Their view is that the Law Society should stick to licensing lawyers and disciplining them. That, I think is what the competence mandate is to them. Otherwise, stick your nose out of our business. Excuse me, but read the Law Society Act. Their platform that concentrates on fee reduction in my view leaves little or no room for any of the following:
ensuring on going competence,
protecting the public,
continuing legal education programming,
the lawyer assistance programme,
lawyer help lines and coach and advisory networks to ensure that lawyers succeed and keep out of trouble,
ensuring access to justice (a statutory mandate of the LSO),
planning for the future, and
timely investigation, assessment and where necessary prosecution of discipline matters.
Why am I with the Good Governance Coalition?
What does the Good Governance Coalition stand for? While we are not a slate and will not vote as a bloc, we all stand for a few basic principles: enhancing the role of lawyers in the community, ensuring opportunities for all in the legal community, ensuring the competence of lawyers by life-long learning and mental health and other supports, supporting libraries so that every lawyer in every part of the province and in every size firm has full access to a suite of legal knowledge and software programming, supporting solos and smalls with coach and mentoring programmes and CLE, ensuring that lawyers keep up to date on the changes in technology, facilitating access to justice including promoting legal aid and pro bono services across the province. All are at risk with Fullstop.
What do the Full Stoppers want? Their name says it all. Stop everything and turn back the clock. Reminds me of a former President of the United States.
I wish I did not have to be part of a Coalition. But the people in the Full Stop slate created a slate to do what was done the last time: to split the vote of all the many good people who ran last time and come riding up the middle. The Coalition has been established to prevent that from happening again. As a bencher, I can tell you that it has been a very hard 4 years. I would have said, 8 years as a bencher was enough. But I cannot sit back and just let them back in, for the sake of the future of our profession.
The Federation of Ontario Law Associations
LiRN is a centralized subsidiary of the law society that allocates funds to support 46 county law association libraries. It does great work.
There is at least one of the recommendations that I would have voted to kill, too. And the Fullstoppers are making the report an issue when they had the opportunity to repeal it during this past term of Convocation. That seems disingenuous to me.
Do the simple math. What is $5,000,000 divided by about 57,000 lawyers.