Number of Benchers is 'too many' for effective decision making
A review of the Law Society of British Columbia’s governance structure says its legal framework “is not fit for a modern regulatory body,” adding that the number of Benchers is “too many for effective and efficient” decision making.
“In particular, the power of the members to elect the Benchers and to overrule them and to stop changes to the Society’s rules means that the Society acts more like a professional association than a professional regulator,” says the report’s author, Harry Cayton. He is a former CEO of the U.K.’s Professional Standards Authority.
Cayton observed how the regulator is governed in his report, which was researched and written between July and November. His report included findings that:
- The multiple roles which Benchers are required, or have chosen, to fill results in inevitable conflicts of interest.
- There are too many committees and groups whose roles and accountabilities are unclear.
- There is a lack of engagement with regulatory matters.
- That the law society is too involved in responding to the interests of the legal profession.
As an example of some of the “inappropriateness” of the society’s voting rules for a regulatory body, as opposed to an association or trades union, Cayton’s review points to two member-proposed resolutions at the society’s last annual general meeting.
The first aimed to commit the society to oppose a practice directive made by the courts on using preferred pronouns (she/he/they, his/hers/their), which some objected to as a restriction of free speech.
“A practice directive from the courts is not within the [society’] jurisdiction,” he wrote. “It is not for the Law Society as a regulator to campaign for or against a directive from the courts.”
The second resolution proposed changes to the information in the society’s Lawyer Directory to allow both preferred pronouns and alternative names. “This is an administrative matter,” Cayton wrote. “It was not opposed by the Benchers so why it needed a formal resolution by the members is beyond me. At no point was there any discussion of the public interest in either of these matters.”
Two other resolutions, put forward by the Benchers, had the objective of limiting the number of “irrelevant resolutions.” The first proposed that at least 50 members (fewer than one per cent of the practising membership) should be needed to bring forward a resolution. The second suggested that the president of the society should have the power to determine if a resolution was relevant and rule it out of order if it was not.
Neither of these proposals passed. The first was not supported by a majority of members who voted but needed a two-thirds majority. The other didn’t reach the 50 per cent threshold.
“Unfortunately, it seems that irrelevant and partisan resolutions from members will continue to be brought forward and to distract and misdirect the society away from the public interests,” Cayton wrote.
Cayton’s review assessed the society’s governance against the standards of good governance as adapted from the Professional Standards Authority’s Standards of Good Regulation. He wrote that the society meets four of the nine standards, partially meets three and does not meet two.
“This is an acceptable result on a first assessment as the standards are intentionally demanding,” he wrote in the report.
Cayton’s review finds that the society’s governance structure has strengths in its comprehensive governance policies and procedures, its commitment to equity and diversity and truth and reconciliation, its corporate behaviour, and its “respectful discussion of issues and the positive relationship between the Benchers and the executive team.”
However, the report states that the society’s weaknesses are “conflicts of interest, lack of focus on regulatory matters, measurement of outcomes, lack of engagement with the users of legal services and commitment to the public’s interests.”
Cayton was given full access to Law Society documents and records for his review. He observed the proceedings of the annual general meeting in October. Cayton also conducted more than 30 interviews, attended board and committee meetings, met with chairs of the executive and access to justice advisory committees and reviewed recordings of a selection of committee meetings.
Cayton’s recommendations include:
- The society should open membership of advisory committees to knowledgeable, experienced, and diverse members of the public.
- The society should reduce the number of committees, working groups and task forces. Criteria for committee appointments should be transparent and based on expertise and merit.
- The society should seek amendments to its rules to reduce the number of elected Benchers and increase the proportion of public appointed Benchers.
- The society should seek to amend the terms of office so that Benchers serve for two terms of four years and Presidents and vice-Presidents serve for at least two years.
- The society should review the agendas of Benchers meetings, and it should eliminate unnecessary items, shorten papers, so they are concise and clear and identified as ‘for information,’ ‘for discussion’ or ‘for decision.’”
Cayton noted that Benchers’ meetings “are very long and require the production of lengthy reports, the substantial majority of which are not discussed during those meetings.”
He observed one Benchers’ meeting had more than 200 pages of supporting documentation, another around 250. Six items were removed under the “consent agenda” and not discussed at all, and only three out of 20 agenda items received much discussion.
A law society news release announcing the release of the review says the organization “has already begun developing initiatives that anticipated some of [Cayton’s] recommendations.” They include further evolution of the tribunal process, recruiting tribunal members from diverse groups of lawyers and the public, and simplifying the complaints process to make it more accessible.
Current society president Dean Lawton said in the news release that his group “engaged Harry Cayton to conduct [the review] expecting we would benefit from his knowledge and experience . . . and from the frank assessment he provides.”
Cayton was asked to assess the society’s governance, including how it supports equity, diversity and inclusivity, against the standards of good governance and make recommendations as to areas where governance structures could be improved.
Lawton added that he is “pleased with the report and I know the board will give serious and thoughtful deliberation to all that he has recommended.”
Jason Kuzminski, director, communications and engagement for the society noted in an emailed comment that Cayton said in his presentation to the board that he placed the law society “just below” the top quartile of all governance reviews he has conducted.
He added that society staff will be preparing a summary for the board of which recommendations can be made without rule or legislative changes, which require rule changes, and which require legislative amendments.
Lisa Hamilton, who begins her term as LSBC president in January, also commented in the release that “the board will be giving further consideration to the report and recommendations early in 2022.”
She added: “I anticipate asking the staff executive team to assess the practical implications of the recommendations and provide advice to the board on how to move forward with the improvements that have been suggested.”
Report author Cayton noted that “there is recognition of more to be done, and I have made recommendations to assist the Society.” He said good relations between the Benchers and the law society staff executive team “will provide a good foundation for addressing weaknesses and improving the Society’s ability to uphold and protect the public interest.”
Before the Bencher elections were held in mid-November, Dom Bautista with the Amici Curiae Friendship Society — a charity that helps B.C. residents complete their legal forms regardless of their means — asked those running for election or re-election to comment on what they were hoping for from Cayton’s report. His Nov. 6 LinkedIn post outlined some of the responses he received.
Re-elected Bencher Jacqueline McQueen suggested that the election profess “ensure more balanced representation of practice areas at the Bencher table and on committees (barrister/solicitor), while also ensuring representation of solo/small firm/large firm/government.”
The elections should also fulfill broader diversity goals, including Indigenous representation and racial diversity. “Where election process does not produce a board and/or committees with adequate diversity take steps to recruit and appoint non-Bencher committee members with these competencies.”
She also suggested increasing the independence of the discipline tribunal from the LSBC and regulatory process. McQueen also agreed with the idea to reduce the overall size of the board and consolidate its committee structure to “encourage informed and meaningful debate on initiatives,” increase focus on the core mandate of protecting the public interest and work on initiatives within the LSBC sphere of control.
Another re-elected bencher, Gurminder Sandhu, said furthering diversity is an important task and wants the law society to be “completely transparent as to the numbers of diversity-based applicants and actual appointments of such applicants to law society jobs and committees.”
He added: “The law society needs to play a part in having law firms follow a similar transparent process. It is only in this fashion that the notion of diversity, in appointments and hires, can be truly judged.”
He also said the society should develop more initiatives that promote access to justice, such as accrediting paralegals to provide legal services. “Further access to justice initiatives, such as recommending all lawyers commit to pro bono services, also need to be actively pursued without delay.”
Re-elected Bencher Thomas Spraggs answered Bautista’s call for comments on Cayton’s report by saying: “The study and application of governance principles, policy and practice has evolved significantly in other sectors like business and higher education. If there are better ways to fulfill the public interest mandate by making necessary governance changes to our existing model, I support it.”