Being a Bencher
Becoming a bencher involves a steep learning curve, especially if you are going to take the job and the work seriously. And I take the job and the work seriously. I am committed to the task, have the time to do it and believe that I have brought a fresh perspective to convocation. I look forward to continuing in the role of bencher.
I have also learned that there is much to be done at the law society and that convocation needs the right people at the table.
To start, it needs people with experience, good judgment, a practical and sometimes creative approach to problem solving, people who have been in the real world of practising law. It needs lawyers who reflect the broad range of regions and practice areas in Ontario. It needs people representing diverse backgrounds so that there is the broadest range of debate and thought at the table. It needs more than for "one issue benchers" with political agendas representing particular stakeholders to get all of the work done properly.
As a first term bencher, I have had the privilege of serving on several important committees and working groups including Professional Development and Competence, Equity, Governance, Entity Regulation and I co-chair the Solicitors Working Group. It is serious work and it needs serious thought.
I am not afraid to speak my mind in the interests of good decision making, even if it means taking an unpopular position. As an example, on December 1, 2016, I brought a motion to discuss and debate separately the 13+ recommendations of the Challenges report.* I was in favour of many of the recommendations but disagreed with the recommendation that a lawyer's confidential personal information contained in the Lawyers Annual Report could be disclosed to the law firm in which the lawyer was a member. I also disagreed with the mandatory requirement that every lawyer must have a particular statement of principles. (To me, now, it is here to stay and should no longer be a distraction to the more important issues that Convocation has to address.)
But more importantly, I said that good governance and the enactment of legislation requires a careful consideration of the language of the legislation to ensure that it will stand the test of time and constitute reasonable and fair regulation. We lawyers do that whenever we review draft legislation and comment upon it. Words in legislation are important. We should do no different when we enact our own legislation and regulations.
But the benchers decided that they did not want to consider, discuss and debate the recommendations separately but chose instead to enact the recommendations as a package, without any discussion of its constituent elements. That is not the way governors should govern. It is certainly not the way lawyers should govern themselves and enact legislation, by rejecting debate.
I believe in common sense and fair and reasonable policy making. I believe that we have to be cautious about what might be overregulation and regulating in matters outside of the mandate of the Law Society. Benchers have to know that regulation must be reasonable, practical and productive. Overburdening lawyers with regulation to achieve what some people think society should look like is not the Law Society's mandate. Common sense must prevail in our decision making. Proper governance requires the appreciation of our mandate and fair process in decision making.
As I say, I am not afraid to speak up for good governance and common sense decision making. Debate should not be stifled at convocation. It is not the way to govern and it is not the way I will govern.
As a lawyer who has contacts all over the province, especially with lawyers operating small and solo firms, I understand the demands of small firm practice. The practical reality of practising law in service to the public must be front and centre in the minds of the regulator.
There are many issues that affect the public interest with which the Law Society is struggling. Those issues also affect lawyers and the future of the role of lawyers in our society. None of the issues involves a simple process or solution. Beware the simple solution and a catch-all phrase.
Beyond the issues, however, the things that should be most important to a voter are the quality of the candidate's experience and judgment and the candidate's basic approach to governance and regulation. There continues to be an imbalance in the representation of practices in Convocation. While so many lawyers are in private solicitors' or generalists' practices, their concerns and attitudes about the direction of Convocation and the extent of regulation of their practices have not been sufficiently voiced. We need more balance in Convocation.
I am only one of a few benchers who are solicitors who understand and appreciate the private practice of solicitors' work and who add important insight to decision making. For example, most benchers have no experience with which to regulate the practice of real estate law, made more complicated in the current world of title insurance, the electronic transfer of funds, and mortgage and title fraud. Diversity at the table demands experience in all areas of the law. Burdening lawyers trying to earn a reasonable living with unnecessary regulation, all with the excuse that it is in the public interest just makes the practice of law more difficult. If you want access to justice, make it accessible by giving lawyers the opportunity of contributing, not by burdening them with regulations that will discourage them from helping.
My particular interests are twofold: Our licensing process should produce competent lawyers and not just lawyers who have absorbed and organized detailed factual written materials in order to write multiple choice exams. Many young lawyers are starting their own practices, and we need to ensure that they have the necessary competencies to serve the public well.
The Law Society benchers voice concerns about access to justice. I agree that access to justice is an important goal. But, I am also concerned about access to competence. Are we doing enough to ensure practice preparedness, quality of service and professionalism? Without competence, there can be no justice.
Most importantly, I want to ensure the exercise of good, smart, practical and common sense decision making and hope to be able to contribute to achieve that end.
*To hear what I said at convocation about the process of decision making and the statement of principles, go to the following link starting at minute 42.