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    • Mar9Fri

      Open letter calling for suspension of the Law Society’s requirement for written SoP

      Originally dated November 15, 2017 March 9, 2018 Paul Lepsoe

      Open letter to members of the Bar of Ontario calling for suspension of the Law Society’s requirement for a written Statement of Principles

       

      November 15, 2017

      Dear friends and colleagues:

      I am writing this letter to my fellow members of the Bar of Ontario concerning the Law Society’s new requirement for each member to prepare a written personal Statement of Principles. I am calling for this requirement to be at least suspended at the last meeting of the Benchers before year end, which will be held on December 1. This action is necessary to allow more time for an informed discussion of the implications of this measure and careful consideration of the most appropriate way of achieving the Law Society’s objective of addressing barriers to equality, diversity and inclusion within the legal profession.

      The Law Society’s requirement has been the subject of considerable comment and controversy among lawyers and in the media. Particularly noteworthy is the article by Arthur Cockfield, Professor of Law at Queen’s University, entitled “Why I’m ignoring the Law Society’s Orwellian dictate”.1 Professor Cockfield is editor of the text Introduction to Legal Ethics, and teaches ethics at the law school. I agree with Professor Cockfield.

      I write this letter with a sense of urgency, although not because of the possible consequences of the Law Society’s requirement for my livelihood. Having been fit and active throughout my life, I have recently been diagnosed with the same type of brain cancer as U.S. Senator John McCain and the late Gord Downie. I am limited to engaging on this issue only in writing because, unfortunately, the early course of the disease has affected my speech and I am unable to speak at the level required to participate in detailed oral debate and discussion.

      Why, you might ask, am I spending my time and energy – both of which may be in limited supply – on this issue? The answer is simply that I believe sincerely that the Law Society’s requirement opens the door to a significant undermining of the independence of the Bar. It puts at risk something that is fundamental for the profession to which I have devoted my career and, more importantly, that is of central importance to safeguarding the rights of individuals in a free society.

      The New Requirement

      The Benchers approved the new requirement in principle at Convocation in December 2016, when they adopted the recommendations from the final report of the Challenges Faced by Racialized Licensees Working Group, “Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions”. The requirement is for “every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public” [emphasis added]. It applies to all licensees, including members of the Bar who have retired or are working outside of Ontario.

      While there were initially few details about this requirement, extensive material was eventually prepared by Law Society staff and issued to the profession via email announcement on September 13 and through material posted on the Law Society’s web site and a one-hour webinar at the end of October. The Law Society states that the new regulatory obligation requires “licensees to make a clear commitment to equality, diversity and inclusion” and that “The intention of the statement of principles is to demonstrate a personal valuing of equality, diversity and inclusion in your practice and in your legal workplace” [emphasis added].2

      The Independence of the Bar

      I am very concerned that this requirement puts the Law Society on a path that leads, ultimately, to a significant erosion of the independence of the Bar. This essential foundation of our legal system is directly threatened by a requirement that goes beyond the accepted duty of lawyers to obey the law and comply with rules governing certain aspects of their behaviour. The new and highly problematic aspects of this requirement are the imposition of a positive obligation to promote certain state-prescribed principles and its extension into the realm of prescribing and constraining thought and expression by demanding that lawyers demonstrate personal commitment to, or valuing of, these principles.

      It is worth reminding ourselves that the independence of the Bar from the dictates of state power has roots that go back to the very beginning of the Law Society. Christopher Moore’s history of our profession’s governing body, spanning the years 1797-1997, makes this point eloquently in relation to the central role of our nineteenth century predecessors in the fight for responsible government and the reinforcement of the rule of law:

      “… the independence of lawyers established by the founding of the Law Society in 1797 was crucial to the political freedom of Baldwin and other reform- minded lawyers. A call to the bar conferred an unusual degree of independence from pressure by the Crown’s representatives in Upper Canada.” [emphasis added].3

      This issue remains a live one to this day, particularly in relation to the role of the regulator in policing our profession. On November 6, just last week, Groia v. Law Society of Upper Canada was argued at the Supreme Court of Canada. The issue is essentially how much control the regulator should have to review and sanction the conduct of an individual lawyer in representing a client. In the underlying case, no one had complained about Mr Groia’s conduct: not the counsel prosecuting Mr Groia’s client, not the judge, not Mr Groia’s client (who had been acquitted in any event). Rather, the subsequent Law Society proceeding against Mr Groia was initiated by the Law Society itself. It appears that a Law Society staffer saw something about the case in the media, and on that basis the proceeding against Mr Groia began. Eventually, the Law Society panel found against Mr Groia and imposed the penalty of a suspension from practice.

      At subsequent appeals and at the Supreme Court, the Law Society conceded that Mr Groia had not acted dishonestly nor in bad faith. At the Supreme Court hearing last week, the Court repeatedly asked counsel for the Law Society to explain why they alone had initiated and pursued disciplinary action against Mr Groia when all would agree that while he may at times, in a very long trial, have misstated a complex point of the law of evidence, he did not do so deliberately. Despite being pressed to answer in the hearing, including by the Chief Justice of Canada, the essence of the response by the Law Society counsel was that at times Mr Groia had been “rude” to the prosecutor.

      Independence from state control over thought and expression is of course essential to lawyers’ ability to act freely and effectively on behalf of their clients. This perspective reminds us that although the debate about the Law Society’s new requirement has largely been conducted among members of the Bar, this issue is really not about the lawyers; rather, it concerns the fundamental right of each citizen to have a lawyer whose views are truly independent of state control and whose personal values and political expression are not subject to direction or review by state power.

      A citizen’s right to an independent lawyer is very important. Clients may disclose to their lawyers the most intimate aspects of their lives, including matters pertaining to their marriages and relationships with children, finances, and other aspects of their personal and professional activities. They may be asking their lawyers whether something they have done might be a crime. Their future well-being and even their freedom may depend on the ability of their lawyers to act fearlessly and forcefully on their behalf. And this relationship is protected by confidentiality such that lawyers are bound never to reveal their clients’ information to the government or anyone else without their clients’ permission (subject of course to common sense exceptions such as the lawyer him or herself being part of a criminal act of the client).

      The importance of this independence and impartiality has been brought home to me as a litigator. I have acted for many charities or entities seeking charitable status.4 In some instances, my clients’ views or the nature of their activities were not shared or supported by some government officials. In any event, as a Christian lawyer acting for these entities, many of which were of different faith origins or completely secular, I felt that I was acting in a way that was completely independent of whatever my own views, values and beliefs may have been. This independence and impartiality would be jeopardized now that I am apparently obliged to prepare and endorse a mandatory personal statement of principles.

      So when citizens risk losing their right to an independent lawyer, they risk losing something very important. Threatening that independence is so contrary to the role of a lawyer in our system that I cannot accept a requirement that I report on a statement of personal principles or values, regardless of whether I may in fact agree with much or indeed all of the principles at issue at the time.

      The Special Circumstances of Small Claims Court Judges

      Further, I am concerned that Law Society staff may have overlooked the implications of the new requirement for the one group of Ontario lawyers who are both lawyers and judges, namely the approximately 350 lawyers who act on a part-time basis as judges in the Small Claims branch of the Superior Court of Justice of Ontario. I happen to be one of these lawyers. It is hardly glamorous work. For example, compared to the regular full-time judiciary, our pay is modest and there is limited tenure. We remain lawyers subject to all Law Society requirements. Yet, this arrangement has worked well for many decades.

      Almost half of the civil claims in Superior Court are handled in the Small Claims branch. In most cases, at least one side is self-represented. For a practicing lawyer the amounts at stake might not seem like a lot of money, but for many litigants in Small Claims Court these amounts may be all, or more than, they have. The objective is to revolve these disputes fairly and as quickly as possible. Thus as judges we have a focus on mediation or so-called “settlement conferences” to try to resolve these disputes and help litigants avoid becoming mired in the legal system.

      In this context, it is difficult to see how imposing a vague speech code on me as a lawyer would help the public appearing before me as a judge to understand and accept my impartiality in the context of this dual role. We are also judges with the power to impose imprisonment for contempt of court. I had thought my role as judge is to try to do justice between the parties on the basis of facts and the law, without the power of the state as represented by the Law Society requiring me to create a statement of principles setting out my personal commitment to specified values.

      Additional Problems with Substance and Process

      In addition to my primary concern with the threat to the independence of the Bar, there are several other related problems with the Law Society’s requirement. Other people have also raised these concerns in their comments on this requirement.

      The requirement is unclear and perhaps incoherent, as demonstrated by the ongoing debate among many members of the Bar who have struggled to understand it. There is evidently considerable uncertainty and confusion about the meaning of key terms, including elements of the obligation imposed on lawyers. For example, the legal opinion commissioned by the Law Society states that “We had difficulties interpreting the word ‘generally’ in the Recommendation”.5 After offering several possible interpretations, the opinion letter recommended that “the Law Society clear up this ambiguity” and added that the author’s conclusion “that the present language is not inconsistent with the LSA [Law Society Act] or the Code [Ontario Human Rights Code]” was reached “without necessarily knowing the Law Society’s exact intention here.”6

      The mandatory nature and possible sanctions associated with the requirement are also an area of uncertainty. While phrased as a regulatory requirement, the consequences of indicating non-compliance and providing a reason on the Annual Report appear to be limited, at least for the time being, to a letter from the Law Society reminding the licensee of the requirement and identifying resources to assist in drafting the Statement of Principles. Another recommendation of the Challenges Faced by Racialized Licensees Working Group that was adopted by Convocation speaks of “progressive compliance measures” but no details are currently available. A failure to adhere to a Law Society requirement ultimately makes the lawyer subject to disbarment, otherwise the requirement is meaningless. It is unclear whether or not the Law Society anticipates that this new requirement will eventually be backed by this sanction.

      Finally, the details of this requirement were developed by Law Society staff and hastily released late in the year without an opportunity for consultation with members of the Bar. By way of comparison, consider the Law Society’s approach to its recent proposal in October to change its name. The Law Society’s name has been the Law Society of Upper Canada since its foundation 220 years ago in 1797. Upper Canada was of course the name of what is now known as Ontario.

      Shortly after the decision by the Benchers to seek the legislation needed to drop the words “Upper Canada” from the name, Law Society staff emailed the profession an online survey on possible alternative names that was due within four days (simply keeping the existing name was not a choice offered). Over 17,000 licensees responded. On that basis the Benchers voted in November to adopt a new name.

      In contrast with this very limited engagement with the profession on the name change, the Law Society did not inform lawyers about the details of the requirement for a Statement of Principles until the September email, nor has it explained all that is entailed in its use of state power in this way. There has been no formal mechanism to survey opinion or solicit input or comments, beyond brief answers to questions offered at a one- hour information session presented by webinar on October 30.

      The significant concerns and confusion evident in the debate to date and the widely different interpretations of the substance and implications of this requirement that have been advanced by members of the profession provide clear evidence of deficiencies in both substance and process. At a minimum, there is an urgent need for the Law Society to step back, suspend this requirement now, and allow time for detailed consideration of important issues through a full and informed dialogue with members of the Bar.

      My Personal Vantage Point: Values and Experience

      Finally, I would like to place this letter within a more individual perspective. Regardless of the analysis presented on an issue such as this, there is a risk that the debate may turn to personal attacks on the basis of perceived biases or interests. There may also be insinuations that those questioning the requirement are arguing from a position of privilege that they seek to defend, or that they fail to recognize or understand the challenges faced by those who confront obstacles to equality, diversity and inclusion.

      I sincerely do hope that my profession will continue to remove barriers to equality, diversity and inclusion. The concerns that I raise are not with these objectives, but with the new requirement as a means to achieve them.

      I have my own immigrant experience, since my father immigrated to Canada from what was still early post war Norway less than three years before my birth. As a new immigrant, my father also faced challenges of inclusion and the acceptance of diversity as he integrated into Canadian society.

      Our extended family has also had immigrant experience with Canada. Second cousins had immigrated to British Columbia just before the Second World War. After war broke out and Norway had been invaded, our cousin Robert Lepsoe joined the Royal Norwegian Air Force, then in exile in Canada, and trained as a pilot in Muskoka, Ontario. He was sent to Europe and became attached to the British Royal Air Force as a Spitfire pilot. Robert Lepsoe was shot and killed in the air in an operation over occupied Holland in 1944. He was 22 years old. This is how my cousin’s immigrant experience in Canada unfolded.

      Fortunately, Robert Lepsoe is not forgotten. Some years ago, the B.C. government introduced a program of naming geographic features in that province after those who had given their lives for Canada. There is now a Mount Lepsoe near Trail, B.C., named after our cousin Robert Lepsoe. I have yet to visit it, but I hope soon, with my children, to honour him and his sacrifice.

      Conclusion

      The last meeting of the year of the governing body of the Law Society, the Benchers, is 0n December 1. So there is still enough time to scrap or at least suspend this requirement before it is implemented at the end of the year.

      I call upon lawyers and members of the public who recognize the importance of a truly independent Bar to urge the Benchers to take this step. We can then work together to reconsider how better to achieve the objective of moving towards greater equality, diversity and inclusion while safeguarding the fundamental principle of the independence of the profession to which I and many others have committed ourselves with passion and dedication throughout our working lives.

      Paul Lepsoe* Barrister & Solicitor Ottawa, Ontario

      *I gratefully acknowledge the assistance of many in the preparation of this letter in my present circumstances, including in particular my friend and former Queen’s housemate Steven Kennett, BA(Hons)(Queen’s), MPhil(Oxford), LLB(Toronto), LLM(Queen’s). I remain entirely responsible for the positions contained herein.


      1 Contributed to The Globe and Mail, October 17, 2017. See also the lead editorial in The Globe and Mail on November 10, 2017: “Prove that you think like us, or else”.

      2 See the “Frequently Asked Questions” on Equality, Diversity and Inclusion, posted on the Law Society of Upper Canada web site: www.lsuc.on.ca.

      3 Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers: 1797-1997 (Toronto: University of Toronto Press, 1997) p.77.

      4 For example, The Priory of Canada of the Most Venerable Order of St. John of Jerusalem [St. John Ambulance] v. Canada (Minister of National Revenue), 2004 FCA 345; Earth Fund v. Canada (Minister of National Revenue), 2002 FCA 498; Canadian Magen David Adom for Israel v. Canada (Minister of National Revenue), 2002 FCA 323, Rothstein, J.A. dissenting; Crichton Cultural Community Centre v. The School of Dance, [2004] O.J. No. 1536, 2004 CanLII 26717 (ON SC); The School of Dance v. Municipal Property Assessment Corporation and City of Ottawa (Unreported, 2003)

      5 Pinto Wray James LLP, Letter to the Law Society of Upper Canada “Re: Opinion on Working Group’s Recommendations re Challenges Facing Racialized Licensees”, November 16, 2016, p.25.

      6 Ibid, p.25.