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Now is the benchers’ election of our discontent

This has been a tough winter in Canada — one of the hardest in recent years, climate change notwithstanding. Thanks to extended periods of frigid temperatures in southern Canada, we’ve all had unhappy tutorials in the science of things such as polar vortexes and weather bombs. So it was that it was often warmer in Whitehorse than in Toronto. At least in the circles I run, that meant that February was a grumpier month than it usually is. It also meant that, more than once, I found myself mumbling the Duke of Gloucester’s famous line from Shakespeare’s Richard III, “Now is the winter of our discontent.”

That line came to mind again the other day when I was scanning my twitter feed and following the Ontario bencher election. I remain a member of the Law Society of Ontario and I happen to know (and admire) many of the candidates who are running. Several of them are people I consider personal friends. So, I’ve been paying closer attention than most lawyers in Alberta are wont to do. And what I’ve noticed is that this is, without question, the angriest legal profession election I’ve ever seen.

I’ve been voting in law society elections — Nova Scotia first and then Ontario — since the 1980s. Over the years, I’ve seen some hotly contested votes. And I’ve met some candidates who were real doozies. But I’ve never seen the passion — or the rancour — that I’ve seen so far in this Ontario election.

Typically, a law society election will have one or two key issues around which voter choice eventually coalesces. At one point in Ontario, for instance, a big issue was reducing the size of Convocation. In Alberta, the last election involved an underlying issue of entity-based regulation. And so on. But this year in Ontario is quite different. Rather than one or two principal issues, there seems to be a host of them demanding our attention – and each involves the drawing of deeply seated emotional battle lines.

So far, I’ve seen angry screeds about tuition levels in law school (scandalously high), diversity (pitifully low), alleged vote trading among law firms (a bad thing), the degree to which the law society should be driving the technology bus among lawyers (split opinion), grey hair among the benchers (way too much of it), who should be sitting in judgment of lawyers behaving badly (perhaps a stand-alone tribunal?), transparency within the law society (there is not enough), membership fees (see “tuition levels,” above) and operating deficits. (What? How could an organization that charges that much be running one? Seriously? It must be the catering charges). And then there is the so-called “Stop SOP” slate of candidates pledging to try to repeal the obligation the law society imposed on us to declare that we will abide by a statement of principles that acknowledges obligation to promote equality, diversity and inclusion. It’s too early to say whether Stop SOP is what we in Alberta are learning to describe as a “Kamikaze campaign,” but whatever it is, I don’t think I’ve ever seen as sure-fire a way to raise blood pressure among lawyers as to casually lob a reference to the statement of principles into a conversation.

It will be interesting to see how all this messiness plays out on voting day, April 30. One wonders whether the various passions on display among the candidates will arrest the decline in voting numbers in recent years. It’s a paradox. For interest in being a bencher has never been higher. A record 135 lawyers are running for the job this year. That’s a 40-per-cent increase over the number in the last election. But it seems that our keenness to choose them has never been lower. Law Times reported that between 1987 and the last election, in 2015, voting turnout declined from almost 60 per cent of the bar to just a little more than a third. That’s not a healthy trend-line at all, and one hopes it will start to tilt upwards again.

At the same time, one wonders how the law society will actually manage its agenda in any kind of orderly way. As someone who had occasion to attend meetings of Convocation for more than a decade, I can report that they could seldom have been accused of being pot boilers. And that thing that we teach in law school about the importance of succinctness in speech? Well, that’s not how they did it in Convocation of the Law Society of Upper Canada. But it’s hard to imagine that a 1960s-Berkeley-type free for all would be a better — or more productive — alternative.

But most importantly, one wonders how the society will find the bandwidth to deal with some of the other existential issues facing our profession. Alternative business structures is hardly a sexy topic. But if our concern is making legal services more accessible to citizens (in other words, if we really believe that access to justice is an important goal), it’s at least worth a discussion. For the same reason, we need to think seriously about broadening the scope of permitted practice for paralegals. What about professional self-governance? If we don’t begin to build a case for its continuation, it’s hard to imagine it surviving — particularly if a provincial government decides that some political hay can be made out of the issue. And who knows, maybe it shouldn’t. But I’d at least like us to be involved in a serious way in the debate. And, yes, there is the cost of legal education. That’s a very important issue. But it is only part of a much bigger discussion we need to have regarding the whole continuum of professional development. Will we, though, have the time and energy to do that? Put another way, will our new Convocation be a place of heat or of light?

In popular usage, we tend to employ the Duke of Gloucester’s line for negative connotation — as I did earlier. But perhaps we should remember that in Shakespeare’s play, it was actually part of a speech about hope. “Now is the winter of our discontent,” said the Duke.

Made glorious summer by this sun of York;

And all the clouds that lour'd upon our house

In the deep bosom of the ocean buried.

Now are our brows bound with victorious wreaths;

Our bruised arms hung up for monuments;

Our stern alarums changed to merry meetings,

Our dreadful marches to delightful measures.

Let’s only hope that come May Day, with our new Convocation, our ending is as happy as Shakespeare’s. 

  • Making ABS ownership 'legal' cuz that's where the big, quick & easy money in legal fees is

    Ken Chasse
    Using alternative business structures (ABSs) to improve production and affordability, amounts to adding a motor to a bicycle in the hope that it will produce the equivalent of a motor vehicle, i.e., you cannot solve a production problem by embellishing a very obsolete method of production. The legal profession still uses a "cottage industry" method of producing legal services, but all of the manufacturing of everything, services as well as goods, has been transitioning to various forms of the "support services" method for over 150 years. The investment money may provide a little more cost-efficiency to a law firm, but it cannot create the large economies-of-scale that affordability of products for all income levels of society requires. That is why automobile manufacturers have a large, very sophisticated "parts industry" to create those large economies-of-scale for them. Otherwise, automobiles, like legal services, would be too expensive for the majority of society. Consider, no doctor's office provides all treatments and all remedies for all patients, the way a lawyer's office does for all clients. The client gets only the benefit of the internal resources of the law firm. There are no external, highly specialized, high production volume support services to create the necessary economies-of-scale that affordability requires. But the concept of the bencher-manager does not allow them to get involved in sponsoring such innovations. And so law societies and benchers have not changed since law societies were created. Therefore, they will never solve the unaffordable legal services problem, and never try to solve it. No law society has a program the purpose of which is to solve that very serious affordability problem. ABS investors are interested in "the quick and easy money" in the legal services market, meaning to corner the market on the production of simple, routine legal services. But they are not the legal services that are unaffordable to that majority. It's services that require more of a lawyer's time and advice than routine legal services do, that have caused the A2J problem (access to justice problem) that is the unaffordability of legal services for middle and lower income people. They are the majority of society, taxpayers, and voters. So what is the legal profession and its law societies doing for that very politically-important majority--nothing! What are Canada's journalists doing for that majority as to the failure of law societies to make available affordable legal services--nothing! But changing law society regulations so as to make ABS ownership of law firms "legal," would mean many millions of dollars in legal fees for those law firms whose clients could be investors--legal fees representing those investors in negotiations with the many hundreds, if not thousands of law firms across Canada that are short of clients and struggling. A law firm heavily involved in that work wouldn't need any other clients. That is why the benchers from the big law firms want to make ABSs legal--particularly so because the law societies mutual "Mobility Agreement" would enable them to negotiate with law firms across Canada. That's big money, and they will "follow the money" and use their positions as benchers to improve the fortunes of their law firms. But the experience in England has made clear that ABS investment has had almost no impact on the unaffordable legal services problem, which is to be expected. But I forecast that within 5 years, LSO here in Ontario, will make ABS ownership of law firms legal. There is too much money to be made for it not to happen. And if LSO allows it, all other law societies in Canada will want in on that easy money. LSO has taken the first step (the "thin edge of the wedge") by allowing CSOs (community service organizations) to be ABS investors. Why is there no "investigative journalism" in regard to these several issues?? See: Ken Chasse: (1) "Alternative Business Structures' 'Charity Step' to Ending the General Practitioner" (SSRN, pdf.) at: https://ssrn.com/abstract=3020489 ; (2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions" (SSRN, pdf., Nov. 7, 2018, 153 pages); online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 ; (3) “Canada’s Law Societies Need a Civil Service” (SSRN, Jan. 9, 2019, pdf.), at: https://ssrn.com/abstract=3311712 ; (4) “Law Society Accountability for the Access to Justice Problem” (SSRN, Nov. 27, 2018, pdf) 26 pages; at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3291699. Stop writing the easy stuff from mere impressions. Get into some real investigative journalism that serves a useful purpose besides entertainment. Or alert your journalist friends.