The Issues

The Importance of Diversity in Governance

Equity, Diversity, and Inclusion in the Legal Profession

The SOP

The EDI Requirement

Expansion of Paralegal Practice

Transparency, Accountability, and Governance

Access to Justice

Licensing

Sole Practitioners and Small Firms

Alternative Business Structures

Entity-Based Regulation

Technology and Artificial Intelligence

Fiscal Responsibility

The Importance of Diversity in Governance

Many people are talking about the importance of diversity in the Bencher election and I couldn’t agree more. Some people have asked me why it is important, what it means, and what I think Convocation should look like. Quite simply, diversity is critical for good governance.

There was a time when all places of power in Canada were predominantly filled with white men from a certain socio-economic background. One problem with this is that psychology and sociology tell us that the human mind filters information based upon, at least in part, the experiences which people have had. People from similar backgrounds tend to have many of the same experiences. So when leadership, be it in government, in a regulatory body, in the judiciary, or in the boardroom, has predominantly one background, the information that will flow in will be going through a similar filter which is not informed by the real life experiences of people whose views are just as real and just as important (women, racialized people, Indigenous people, LGBT2QS and persons living disabilities). When decision-making, at the highest level, is made by a homogenous group, that decision-making is simply not as good.

There is a great body of research that shows that corporations earn higher profits where Boards are more diverse, and corporate misconduct is lower in more diverse settings. See in general Professor Aaron Dhir’s book, Challenging Boardroom Homogeneity: Corporate Law, Governance and Diversity. Diversity really is one of the best tools we have to ensure that decisions and outcomes are the best they can be. In Convocation that means having diversity in the usual way it is understood: more women, racialized people, Indigenous people, LGBT2QS people, persons living with disabilities, and people from other equity seeking groups. But it also means having a broad cross-section of lawyers from different practice settings, e.g. litigators, real estate lawyers, family law lawyers, etc. big, medium, and small firm lawyers, in-house counsel, sole practitioners, lawyers who work in clinics, government lawyers, and other settings. And we mustn’t forget generational diversity. In the legal setting, the experiences that younger lawyers are now having and circumstances they are encountering are very different than those that existed when many of us grew up. Frankly, I think younger lawyers probably have a lot more to offer when it comes to technology, social media, artificial intelligence, and the ways in which these impact lawyers and should be regulated. But overall, lawyers from all generations have valuable insight that should be available for consideration because understanding where we came from is just as important as where we may be going.

Diversity by definition means difference, and that means that sometimes reasonable people will disagree. I have seen this during this last four years of Convocation. People who I have a great respect for disagreed with me at times and I with them. Sometimes they ended up changing their minds and sometimes I did. Personally, I’m not afraid of disagreement–I think respectful disagreement is good, because when we disagree and challenge each other, we take a closer look at whatever it is we are doing and we can make it better. Without it, we can sometimes travel down a path that may not be the wisest. So when you cast your vote, I hope you will take this into account and support a diverse array of candidates so that we can have the best governance possible.

Equity, Diversity, and Inclusion in the Legal Profession

The LSO did a 4-year study through the Challenges Faced by Racialized Licensees Working Group that showed there is a significant problem with discrimination in the legal profession. I don’t think anyone can credibly argue otherwise. Systemic discrimination has a number of impacts. First, it is unacceptable in the profession that is the guardian of the rule of law and the legal system in general. It also impacts the public. I have attended conferences where members of the public said they didn’t receive competent legal representation because their lawyer was racist or sexist.

A significant reason for discrimination is not deliberate racism or sexism; rather, it occurs because of unconscious bias. Research tells us that one of the ways to address unconscious bias is to educate, and remind people that racism and sexism exists and that they should be diligent. The LSO initiatives were crafted by the Racialized Licensees Working Group with a view to addressing unconscious bias. They were developed with significant input from the profession, various legal associations and experts. There were many prominent members of the legal profession on the Working Group who supported these measures. Members of equity-seeking groups supported and are in favour of these measures as a way of addressing discrimination.

As a Bencher and former Vice-Chair of the Equity and Indigenous Issues Committee, I have advocated for these initiatives and their application to other equity-seeking groups.

Attached are the arguments I made in support of the recommendations at Convocation in December 2016. You can also see the coverage of my comments in an article in Canadian Lawyer.

As a member and former Vice-Chair of the Equity and Indigenous Affairs Committee, I also worked on improving the visibility and operations of the LSO’s Discrimination and Harassment Counsel.

If re-elected, I will continue advocating for and finding ways to improve diversity, equity and inclusion within the profession.

The SOP

The Statement of Principles (“SOP”) is part of the package of measures recommended by the Racialized Licensees Working Group, which we hope will help address systemic discrimination and unconscious bias. The SOP requires lawyers to write their own statement acknowledging obligations they already have under the Human Rights Code and the Rules of Professional Conduct. Some people have told me that they already comply with these obligations and if lawyers don’t want to, the SOP won’t make any difference. I disagree. As I stated before, a significant reason for discrimination is not deliberate racism or sexism; rather, it occurs because of unconscious bias. We hope that the SOP will be a reminder to lawyers of their obligations and with it in mind, we hope to address unconscious bias. The SOP was intended to promote reflection, not impose any beliefs.

I don’t want to be unfair to the STOP SOP movement, but I really don’t understand it. When an immigrant comes to this country and seeks citizenship, that person must swear an oath to uphold the laws of Canada. Why should lawyers have such an objection to the SOP if they already comply with their obligations? Shouldn’t we all be doing as much as we can to be as fair and equitable as we can be? I hope that the profession can move beyond this issue and do the hard work of addressing systemic discrimination and other issues facing the profession.

The EDI Requirement

Someone complained to me recently about the Equality, Diversity, and Inclusion professional education requirement, that it was unnecessary and that it was difficult to find education that fulfilled the requirement. The EDI requirement is 3 hours over 3 years and counts towards the professionalism requirement that already exists. The reason for it is the same as the SOP. It is part of a package of initiatives to address systemic racism and sexism through education—one of the tried and tested means used. There are free EDI programs available online on the LSO website.

Expansion of Paralegal Practice

There is a crisis, particularly in family law, with unrepresented litigants. These are people undergoing probably the worst and most stressful part of their life and they need help. The role of the LSO is to govern the profession in the public interest in a way that facilitates access to justice. The Ontario government appointed Justice Bonkalo to conduct a review of what was happening in family law and after extensive consultation she concluded that access to justice in this area would increase if parties other than lawyers were permitted, with proper training and licensing, to assist family law litigants. As a result, the LSO approved in principle a commitment to develop specialized licenses for paralegals and others with appropriate training, to offer some legal services including process navigation, form completion, uncontested divorces and other matters arising outside of court. I support this as it is necessary and in the public interest that people who cannot afford a lawyer have access to other professionals who are properly trained to assist them. I am reserving my views of any further expansion pending further review of the issue.

Transparency, Accountability, and Governance

I am on the Governance Task Force. The LSO Board had 90 members up until the fall of 2018. This is unheard of in any other regulatory body. The 90 included approximately 40 past members with lifetime tenure, who were not elected, and therefore not accountable to the electorate. Although we recognized that these individuals had made a significant contribution in the past, it was our view that the health of the organization required a reduction in the size of the Board and this was the logical place to start. We recommended the removal of rights held by “Life Benchers” and “former Treasurers” to improve accountability and improve our decision-making. Frankly, in my view, what the LSO needs are more Benchers with more recent experience in the legal profession as they are the ones with the most knowledge about and stake in issues like articling, licensing, technology, and artificial intelligence. I think it’s time that we start empowering these younger members of the profession.

Attached are the arguments that I made at the November 2018 Convocation in support of some of these changes.

I was also part of a group of Benchers who advocated for a more transparent system of appointments made by the LSO to external bodies like the Judicial Advisory Committee and the Legal Aid Board. As a result, the Treasurer created the Treasurer’s Appointments Advisory Committee where we implemented transparent criteria for the selection of persons appointed, together with a robust application process in order to attract many diverse members from the Bar. This has been successful.

If I am re-elected, I will continue to advocate for improved governance.

Access to Justice

There is an access to justice crisis. It is exacerbated by the high cost of tuition and licensing that drives up the cost of legal services and also inhibits debt-laden new lawyers from pursuing public interest careers. This crisis requires the joint efforts of the LSO, the Ontario government, law schools, and the Bar. Some measures that I believe the LSO should take include:

i) Advocacy to the government in support of legal aid;
ii) Advocacy to universities for lower law school tuition, or other ways of addressing student burdens;
iii) Reduction of licensing fees currently paid by students;
iv) Reduction of fees paid by lawyers whose main practice serves lower income Ontarians;
v) Encouraging pro bono work;
vi) Working with law schools to expand their clinic programs that are already set up to provide services to Ontarians in need; and
vii) Becoming a strong voice for improved court processes, simplification of court forms, and alternate dispute resolution in areas like family law.

If re-elected, I will work towards improving access to justice through some of the above means, as well as others recommended by stakeholders through the Access to Justice Call for Input.

Licensing

During the fall of 2018 the LSO considered some options to change the licensing regime but ultimately voted to retain the current system of articling with a Law Practice Program with some enhancements. I don’t think the issue of licensing is going away. There will continue to be more and more new lawyers who cannot obtain articling positions and many are not opting for the LPP.

Ultimately, I believe there should be one system of licensing and I will continue to work towards this. I believe the LSO should work with law schools to implement skills training similar to the LPP during the last term of law school. Thereafter, students can be licensed after writing a more comprehensive licensing exam than we presently have without the need for articling.

Sole Practitioners and Small Firms

Ninety per cent of lawyers in Ontario practice as sole practitioners or in a small firm setting. Lawyers in these settings also deliver the bulk of the private services to low income and middle income Ontarians.

The LSO needs to find better ways to support Soles and Smalls to further enhance access to justice.

Alternative Business Structures

I don’t believe that there is any benefit to allowing non-lawyer ownership of law firms.
However, the LSO recently approved, and I supported, the ability of non-profit organizations who serve various communities to provide free legal services. I believe that this will enhance access to justice. I would also support allowing these non-profit organizations to charge modest fees for these lawyers to defray the cost of employing them.

Entity-Based Regulation

I support this. The reality is that large organizations where lawyers work are often the entities directing the policies and procedures followed by those lawyers. Practical reality mandates that the LSO regulate these organizations because of this.

Technology and Artificial Intelligence

Technology and Artificial Intelligence have and will continue to have strong impacts on the profession and the public. The LSO has established a Working Group to study these issues and make recommendations.

I will support recommendations that address these issues that are evidence-based, in the public interest and which enhance access to justice.

Fiscal Responsibility

The LSO’s revenues will increase annually because of more and more new calls to the Bar. In my view, there should be economies of scale and not all of this revenue should be added to the LSO’s general budget. Rather, a portion of this increased revenue should be used to fund some access to justice initiatives and decrease licensing fees of new calls and decrease annual fees of lawyers, if possible, and as long as the public interest is not jeopardized.

Contact Me

Please feel free to contact me with any comment or question you may have.
Email me: papageorgioug@me.com
Connect with me on Twitter: @GPapageorgiou_