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At least since it became fashionable to do so, the Law Society of Ontario (LSO) has repeated a strong commitment to equality, diversity and inclusion. He commissioned the oft-criticized Challenges report, and even went so far as to require licensees themselves to adopt a statement of principles acknowledging their individual responsibility to “promote equality, diversity and inclusion generally.” (before backtracking amid fierce resistance).
Curiously, the Bar seems more interested in imposing this commitment on its members than in applying it to its own operations. that is, to lead by example. For example, despite the demographic makeup of the profession (still more than half male, until it stopped reporting that inconvenient truth with its 2020 annual report), until recently men were completely absent from the bar’s management team of eight members (there is now one). To a large degree, skin pigmentation also seems oddly absent from this group, though it’s almost impossible to tell, as it’s 2022, and we’ve been conditioned not to see skin color ( except perhaps when inserted into an LSO-sponsored inclusion index to help large companies advertise and win more business from corporations and governments).
Of course, the senior management team is assisted by elected benchers to govern the Law Society. Councilors serve when convened, as directors of the company, and are additionally assigned to committees by the Treasurer. Committees are in turn tasked with examining issues (real or imagined) and generating the steady stream of “good ideas” for which the bar is widely known (such as the Statement of Principles (SOP), the structures of business alternatives, family law licensed paralegals, ever-growing budgets, etc.). However, some councilors are more equal (or valued) than others, which is reflected in Convocation committee assignments (and leadership positions on those committees).
As those who follow the profession may know, there are two district groups at Convocation. On the one hand, there are the types of establishments, the proverbial “cool kids”, who invariably support management initiatives and “toe the line”. On the other, the “outcasts”, namely the members of the list (who won more votes in the last elections than the “cool children”) as well as the writer (who largely did not ), who seek to reform the bar into one in one way or another. The slate’s main claim to fame is to oppose the SOP (of which I was on the sidelines). Otherwise, outcasts generally agree that the LSO needs budgetary discipline and nothing else. The treasurer, selected by Convocation is one of the cool kids.
Surprisingly, the cool kids have a disproportionate representation in the various main committees, of which there are 13 (if you count the sub-committees). For example, of the 136 committee seats occupied by members of both groups, 94 are occupied by cool kids while only 42 are occupied by outcasts. Although there are slightly more nice kids (29) in Convocation involved in committees than outcasts (23), they hold more than twice as many committee positions. If the places in the committees were fairly allocated, the cool kids would occupy 76 positions (instead of 94) against 60 (instead of 42) for the pariahs. Outcasts perform even worse in “other” committees and appointments, securing only six of 27 positions. Obviously, the Treasurer must believe that the cool kids are all the more capable, lest she be perceived as favoring her cool friends through her selections. (Wikipedia defines nepotism as “a form of favoritism granted to relatives and friends in various fields” ; although these committee selections are not unique to the current Treasurer.”
This graph shows that the inequitable distribution of committee positions extends to committee leadership, where councilors are appointed chairpersons or vice-chairpersons. For the 13 main committees, there are 26 leadership positions, either as chair or vice-chair. Of these, outcasts who make up 43 percent of participating councilors chair a committee (out of 13), or less than eight percent. Meanwhile, the cool kids lead the other 12 committees (92%). The cool kids’ lead is narrower in terms of vice presidents, though they still lead with eight assignments to five, and ultimately hold 20 of the 26 leadership positions, just six for the outcasts.
The preference and over-representation of cool kids has led to another rather interesting phenomenon, namely the emergence of “Super Benchers”. Super-benchers are those who are unilaterally appointed to far greater roles in the governance/leadership of the bar than would otherwise be expected. For example, if assignments were made equally, each individual advisor could expect to serve on two to three committees (about 2.6). However, 13 Super Benchers sit on four or more committees, with the most favored Super Bencher sitting on seven, while an additional handful sit on five. Of the Super Benchers, all but one are cool kids. Interestingly, four out of five paralegal counselors are Super Benchers, but who’s to say what, if there’s a connection to the family law paralegal license?
Disturbingly, favoring and overrepresenting the cool kids and ostracizing the outcasts serves to erode the legitimacy of the committee system in the governance of the bar, as well as the governance of the bar itself. Additionally, given the makeup of the cool kids (which includes lay counselors as well as most paralegals), it also raises questions as to whether the bar is in fact self-governing as advertised (given that the outcasts hold 23 of the 40 advisory positions are open to lawyers and yet are excluded from real management control)?
Predictably, the apparent preference of some counselors over others has resulted in costly governance issues for the Law Society. Aware that some advisors are pariahs, management is selective about which advisors (directors) it chooses to provide information regarding its operations upon request (including the writer, who is only honored by management with sporadic responses to his requests). Fed up, Councilor Murray Klippenstein sued the regulator for disclosure, resulting in costly, though entirely avoidable (especially given his mandate under the Law Society Act act openly and effectively). It will be interesting to see what information, if any, the Superior Court determines the pariah administrators of the bar are ultimately entitled to. Likewise, it will be interesting to see if the bar drinks its own Kool-Aid before launching its next equity initiative.
Michael Lesage is a litigator and founder of Michael law firm, a litigation boutique specializing in complex cases involving malpractice, commercial litigation, insurance coverage disputes and serious personal injury cases. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher of the Law Society of Ontario.You can email him at [email protected].
The opinions expressed are those of the authors and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada or one of its respective affiliates. This article is for general informational purposes and is not intended to be and should not be considered legal advice.
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