Making sure that lawyers and paralegals are meeting entry-level competency requirements will be a key role of the law society under new treasurer Malcolm Mercer.
“We know through practice reviews that there are more lawyers and paralegals that aren’t, in fact, practising at the standard we think they should,” Mercer says. “We are looking at that issue through further proactive steps. The traditional approach to regulation is reactive and punitive. We are looking at ways to be more proactive and encouraging. That’s the core obligations.”
Mercer was elected as the Law Society of Ontario’s 67th treasurer on Thursday, receiving 34 votes out of a total of 58 in a second round of voting. The LSO will focus on a number of projects in the vein of monitoring competency over the next two years, including licensing consultation and paralegal licensing in colleges, Mercer says.
“The traditional and still centrally important role of a self-regulator of professions to ensure entry-level competence is assured. When people come into practice, to ensure professional competence is maintained and developed and ensure professional conduct is maintained is not a small challenge. It’s a central challenge,” Mercer says. “We are considering how to deal with the reality that many lawyers and paralegals don’t practise by themselves but practise in groups, and we are working to address how to take that reality into account in regulation.”
The inclusion of paralegals in the law society has been central to new initiatives around expanding the scope of practice of paralegals and expanding access to justice, former treasurer Paul Schabas has said.
As Mercer presided over his first Convocation, benchers have already raised questions about whether the law society has made clear its expectations for aspiring paralegals. In particular, the way that paralegal education program tests are scored came into question, given statistics that almost 55 per cent of students pass the licensing exams on the first attempt in private colleges, compared to nearly 81 per cent in community college.
“Those are hard questions. And it’s an interesting challenge for a self-regulator of two professions to address that,” Mercer says.
Mercer focuses on corporate law and matters of professional negligence as a partner in McCarthy Tétrault LLP’s litigation group in Toronto.
Through the election process, Mercer said he has already learned that there is a diverse range of perspectives within the law society and that his challenge will be to reach a consensus where all professionals feel “heard, listened to and understood.”
“The benchers are a diverse group,” Mercer says, “What I learned that is most important is that benchers want to do the right thing. They are dedicated to their responsibilities — and they don’t all agree with each other. The only way one can properly deal with that is make sure that information is provided, debates are had, consultations are had, leading up to the day Convocation is asked to reach decisions. That’s why we have a diverse group in the room. One of the central roles of the treasurers is to make that work,” Mercer says.
The law society has a number of challenges ahead, including the regulation of advertising, the redressing of inequity in the profession, the treatment of mental health in the disciplinary process and transitions to new technology. Mercer will take the lead at the law society with just one year left in the terms of benchers, and he will quietly spend the next few months working hard on the strategic plan that will be adopted after the next election.
Mercer says he hopes that everyone in the profession recognizes the importance of helping people who have been disadvantaged.
“With respect to the work of the challenges for racialized licensees, there are a number of recommendations adopted by Convocation,” Mercer says. “The work over the next several years will be implementing those recommendations in a way that is thoughtful and respectful and moves the professions forward.”
There has also been an evolution in the law society’s disciplinary process in recent years when it comes to mental health issues, particularly when used as a defence in the law society tribunal, Mercer says. But there are still questions to consider about whether the law society sufficiently accommodates people with disabilities when it comes to investigations and discipline, Mercer says.
“It would be morally wrong to discipline people for that which they could not do because of physical and mental illness. We also know that there are — and cases before the tribunal have made this clear as well — situations where physical and mental illness don’t excuse conduct but nevertheless is taken into account in considering what the consequence should be,” Mercer says. “Like all important issues, I’d be astonished if we can ever say the work is done, but I think we can say the work is advancing.”
Mercer, who has a background in engineering, also said the law society will take a deliberate and long-term approach in considering new technologies, after benchers discussed the issue at a retreat a few weeks ago.
“We’ve already started the work,” Mercer said in a news conference. “Not to come to immediate answers but rather to develop an understanding — I hope, a consensus — on the direction to take.”