The Ontario Bar Association calls on the LSO to stop deflecting and start disclosing
Kathryn Manning is the current president of the Ontario Bar Association.
It is well recognized that “urgency, transparency and accountability” are threads that repair a tattered reputation. Protracted delay, opaque communication, and an apparent disrespect for those affected are the forces that fray the fabric further. Our regulator’s reputation continues to fray with each passing day and every communication. In the face of responsible calls to release information and develop meaningful solutions, time ticks by and communication with licensees becomes increasingly insulting and no more illuminating.
This statement is a rare departure for the OBA, an organization that, time and time again, has demonstrated its willingness to forego the attention generated by pronouncements of disapproval in favour of working with our partners toward solutions. Even on the current issue, we initially offered advice, assistance and patience, on the assumption that the issues, and the need to urgently and meaningfully address them, were as obvious to LSO leadership as they were to the rest of us. We take this uncharacteristic step because calls for urgency have been met with inertia, calls for transparency with secrecy, and calls for collaboration with an increasingly insular approach. Most importantly, we write this because two things we hold sacred are at stake: self-regulation and respect for the profession.
In a letter to the Treasurer in advance of last Thursday’s Convocation, the OBA asked for three things to happen immediately:
In the name of preserving self-regulation, the OBA urged the LSO to deal quickly with the current crisis and then shift its focus from the insular considerations of how to govern itself to the vital work of actually governing.
What emerged instead from Thursday’s Convocation was a communication indicating that decisions about the release of the report were still pending, a summary of the underlying issue that raised more questions than it answered, and the outline of an “action plan” that was a misnomer in both respects. In describing the absence of a decision on releasing the report, one of the province’s leading governance experts put it best in her social media post: “There is something wrong.” She went on to ask: “How can it be that the governing body of the legal profession cannot formulate a decision?”
While the LSO has lost the opportunity to act urgently, it still has a shot at transparency and accountability. There are many smart, sophisticated lawyers on Convocation who have what it takes to rehabilitate the regulator's reputation and protect self-regulation. It is time to hear from them. The vast majority of benchers have been facing criticism for a decision that was not theirs – they were poorly served by the lack of transparency that caused this crisis in the first place and are now being poorly served by the lack of transparency in the management of it.
We call on LSO leadership to open the debate on disclosure of the report and the plan to remedy the underlying issues. If competent governors believe there are risks in disclosure of the report that cannot be mitigated, the bar deserves to hear that. If some believe full transparency regarding what happened is a legitimate chip in private negotiations, the bar deserves to know and to be able to test that belief. If they have ideas on solutions, the bar needs to know. If they don’t, the bar needs to know that too. We understand that there is a need for deliberate confidentiality in some circumstances but surely conducting three secret meetings on this issue tests the bounds of that concept. Benchers need to be able to speak with those who elected them and the public they serve.
As lawyers, we understand that the decisions to be made are not simple, but there are many members of Convocation equipped to make difficult decisions. Many benchers have drafted and delivered a summary of facts, even from a privileged document, in their careers. There are benchers who understand how to draw the proper parameters around good faith disclosure of responsibly vetted information to those with a legitimate interest in receiving it. There are those who understand what information about governors should be disclosed to the people who elect them and the public for whom they work – those who understand how to communicate issues about an organization’s financial processes to its funders.
The LSO has likely retained leading lawyers to advise it, and their advice should be heeded, but the fact that there are risks with disclosure isn’t the end of the inquiry – it is the beginning. Legal opinions are a tool of good decision-making, not an excuse for its absence. It is time to put away the sledgehammer of blanket secrecy and get out the scalpel that makes the fine cuts between unacceptable risk and the transparency necessary to protect the reputation of the regulator and, by extension, the profession's reputation as competent self-regulators. It is time to make a decision and to be clear with the profession about the rationale for that decision and the risks being mitigated.
We need to hear from the many benchers who understand their audience. The profession isn’t going to mistake vagaries for transparency. Lawyers aren’t oblivious to peculiar wording employed to gloss over inconvenient facts. When portions of the story are conspicuous by their absence, lawyers will notice. Lawyers understand that disclosure may be complicated, but when language shifts from “independent review” by an “impartial” reviewer to “confidential legal opinion”, lawyers will have questions. Those questions will not be answered simply by repeating “legal opinion” at every opportunity.
Perhaps most importantly, the bar is not going to be convinced that urgent action has been undertaken merely because a communication uses the words “action,” “plan,” and “urgent.” It is time to draw the fine lines, to make difficult decisions, to issue a straightforward apology to the profession and the public, and to take meaningful action. The bar won’t be convinced the LSO is doing those things until it actually is.
These are hard times for the rule of law, access to justice and our economic stability. Lawyers have a critical role to play. We must get past this issue and turn our efforts to these fundamental matters. The only way past this issue is to chart a straightforward course through; there is no getting around it. We look forward to working with the many benchers who recognize that.
