Law societies are governed by a board of directors. In many jurisdictions, these directors are called benchers. Some are appointed but many are elected by lawyers across the province. They determine matters relevant to lawyers. They establish law society rules and policies. They also serve as adjudicators in disciplinary hearings. Why then do so many lawyers, especially those in small firms, decline to exercise their right to vote for benchers?
Statistics kept by the Law Society of Ontario show a decline in voter turnout over the last few decades despite an increasing population of lawyers. In 1987, voter turnout was 56 per cent. By 2015, it had fallen to 33.84 per cent. In the 2015 election, voter turnout was lower for small firm practitioners than those in larger firms. Firms with more than 100 lawyers had a turnout of 51 per cent. Firms with between 76 and 100 lawyers had a turnout of 77.5 per cent. Firms with between 26 and 50 lawyers, 45.39 per cent. The percentages steadily decline as firm size decrease, ranging from 36.35 per cent for sole practitioners to 44.63 per cent for firms of five or fewer.
The first question is whether low voter turnout is even a problem. The percentages may simply reflect Canadian society at large when it comes to participation in democratic processes. However, the number of non-voters is so large (more than half of small firm and mid-sized firm lawyers) for a self-regulating profession that low voter turnout is a problem. There must be important issues for this population and the legal system that go unaddressed.
While implementing mandatory voting or eliminating voting altogether in favour of appointments would be an easy fix, it would not address why more than half of small firm lawyers do not vote. Lawyers may feel that Benchers, whoever they are, are going to do an adequate job, and so their vote is not going to matter. Some may point to the busyness of running a small firm and the lack of time to become an informed voter, but lawyers in larger firms are busy too. Perhaps it is the absence of lawyer-colleagues within a firm to facilitate discussions about important issues, bencher candidates and to energize voting enthusiasm. Or perhaps the problem is more insidious, and there is a disconnect between small-firm lawyers and law societies.
This disconnect likely arises from a feeling of not being served by the law society, a feeling which becomes antagonistic in many cases. A common theme rumbling through conversations among small-firm lawyers is that the law society is only out to get lawyers and does nothing for them despite all the fees paid. This is exacerbated when one realizes that a majority of disciplinary actions are against small firm lawyers. Furthermore, decisions made by law societies are made in the public interest, not in the interest of lawyers.
Another reason for the disconnect is the feeling that there is a lack of support from law societies for small firm practitioners. Rapid technological advancements have increased privacy and competency concerns that lawyers need to know about; many small firm and older lawyers struggle to adapt to such changes to satisfy regulatory requirements and feel that their law societies are oblivious to such struggles. Many small-firm lawyers also struggle with parental leave and do not have adequate resources from their law societies to navigate this problem. There are also a large number of lawyers, whether by choice or not, that dive headfirst into starting their own firm, and they do so with scrutiny, not support, from their law societies.
Failure to address the disconnect will create a vicious cycle that only widens the gap between law societies and lawyers. This will be detrimental to the profession, and will not serve the interests of lawyers or the public. It is time for small firm lawyers and their law societies to work together to create an environment that helps such lawyers to better serve the public.
From disciplinary proceeds, revising regulations and licensing requirements, to equality and diversity initiatives, what law societies do in terms of governance and policies have a direct impact on lawyers. For my colleagues in Ontario, I hope that you exercise your right to vote in the upcoming bencher election. It is important that the concerns of small firm lawyers are heard, and the first step to doing that is electing benchers with an interest in these issues.