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| Anita Szigeti |
To those who have yet to read the report, I commend the footnotes. Some of the most important revelations are found in the fine print. As with everything else, the devil’s in the details. And once you’ve digested the report, I encourage you to share your impressions publicly and to make your thoughts known to the treasurer. I know, because I continue to hear from lawyers and paralegals every day now, that the concerns many of us have been expressing are shared by tens of thousands of licensees.
I’ve been gratified to receive an overwhelming volume of supportive private messages thanking me personally for speaking out. Many members are terrified of retaliation by the law society. But of course, it would be reprehensible for any bencher or staff of the society to try to intimidate or silence the licensees they govern from making fair comment on how we are regulated. So raise your voices and get involved to help the LSO put this stain on its reputation behind it and move forward with a cleaned house.
Let’s recap where we are now. First, on the release of the report, looking for positives: better late than never. Hearing reaction to the substance of the report, it’s obvious why there was reluctance to make it public. It is a scathing indictment of many aspects of the operations of the law society, even while O’Connor is expressly restricting his determinations to the narrow and specific questions he was asked to answer: whether the salary raise complied with the LSO’s own rules and whether it was enforceable. His answer to both those questions is no.
The report makes it clear that no findings of misconduct are made in relation to any individual here and that would fall outside the scope. But the history of the matter is laid out very clearly and in aggregate identifies problems with the mandate, structure and documentation of committees, within LSO writ large, and identifies errors in all these areas. It does also, however, call into question the conduct of some of the people involved, and for our purposes, most alarming are the contributions of benchers who served on the society’s compensation committee and remain in their roles today. O’Connor leaves next steps entirely in LSO’s discretion, explaining (on pg. 28) “[…] it is open to convocation to pursue any other matters.”
The law society wants us to believe that all will be well if/when they implement the recommendations the O’Connor report makes to improve governance. Ultimately, those recommendations boil down to clearer parameters and better record-keeping. Certainly, it behooves our regulator to minimally implement routine best practices that they require of each of us, where the day-to-day business of lawyering is involved, such as note-taking and record-keeping. And perhaps the “established practice” of never taking or keeping such notes as the society’s committees’ discharged their duties was a contributing factor in this particular scandal. But it was hardly the cause or the main problem.
The former treasurer is now a sitting Superior Court Judge. The LSO has no jurisdiction there. Diana Miles is gone. However, there are several lawyer benchers still in their seats who were formally, or on an ad hoc basis, members of the compensation committee, which is really at the heart of this matter. Yes, the former treasurer ultimately acted unilaterally. There are suggestions that the compensation committee did not appreciate its role. There are suggestions that it was not clear to them that their recommendations should go to convocation, rather than to the treasurer alone. However, what else is clear is that the committee was acutely aware that the proposed increases to Diana Miles’s compensation would not be well received by convocation. Why would those discussions even be held if nobody knew convocation had to approve any salary increase? These two things minimally and manifestly contradict each other.
Perhaps the most troubling thing in the whole mess, however, is a question of conflict of interest. Specifically, it is at least possible that, because they were never told, convocation’s benchers (pg. 40-41) and the other members of the compensation committee were not aware (pg. 45-46), until they received the O’Connor report, that one lawyer member of the compensation committee had been Diana Miles’s personal lawyer who negotiated her contract with the LSO in 2018. That lawyer subsequently voted on the former CEO’s bonuses annually and was the primary person advising the treasurer through their work on the compensation committee regarding the proposed significant salary increase.
At least the lay bencher member of the committee twigged to the perceived conflict of interest nonetheless, however, and told the treasurer the member should be removed from the committee (FN 104, pg. 46). But that did not happen, despite an awareness that “there would be a perception of a conflict ‘of course.’” The lawyer’s perceived subject matter expertise in employment law was determined by the treasurer as worth taking that risk. She was put on the committee and continues to serve there, among other responsibilities on various committees, to this day.
There has been no discussion at all about people stepping down or resigning in the wake of this scandal or of suspending benchers involved while their role in it is further investigated and appropriate remedial action taken, where warranted. However, if the LSO wants to regain the confidence of the profession and that of the public, it’s going to have to do more than release the report and promise to review its bylaws. It’s going to have to take the next steps toward ensuring that we are being regulated by members of convocation who have unblemished track records and meet the highest standards of our profession. Who should look into the conduct of involved benchers? As luck would have it, we already have structures in place for this very purpose. It’s currently known as the Law Society of Ontario.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence and co-author of five textbooks on mental health law. Find her on LinkedIn, follow her on Twitter and on her blog.
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