The Law Society of Upper Canada & Ontario's Lawyers

396 pages,
ISBN: 0802041272

Post Your Opinion
Glasnost at Ontario Bar
by Michael Fitz-James

In spite of its unwieldy title, and the fact that this book is fundamentally an exercise in vanity publishing by the Law Society of Upper Canada, Christopher Moore still manages to show a fairly balanced and independent view of the Ontario lawyers' governing body, at least in its early days.
By far the best chapters in the book are the opening ones, where Moore discusses the society's humble origins. In July 1797, ten of the fifteen lawyers in Upper Canada gathered at Wilson's Hotel in Newark (later Niagara-on-the-Lake) to kick-start the society. Although it wasn't formally incorporated until 1822, the law society was probably the first such body in the English common-law world; it predates the formal founding of the Law Society of England and Wales by a good thirty years.
Moore also tells us about William Osgoode. (A hall in Toronto is named after him.) A competent English barrister, he arrived in Upper Canada in 1792 after receiving a patronage appointment to be the colony's chief justice-a high office he never could have achieved in England, because he was the son of a tradesman. Osgoode did a good job creating a justice system modelled on the English one and shepherding the necessary legislation through the fractious colonial legislature. But he only stayed in Upper Canada for a short time. By 1799 he was pining for home and writing letters to powerful men asking to be re-posted to England. He got his wish, returned with a generous pension, and spent the next twenty-five years enjoying "hunting, good society, and good dinners." He took no more interest in Canadian affairs.
John White, the society's first treasurer (as its chief governor is called), was also an English barrister, whom Osgoode invited to become the colonial attorney-general. He did much to establish the groundwork for the society to become an independent governing body for lawyers, free of interference by any legislature. But he never went back to England; he was shot dead in a duel "provoked by his slurs on his ex-mistress and her husband."
Although Moore recounts a flurry of reform at the law society in the late nineteenth century, throughout the first half of the twentieth the body settled into a complacent and change-resistant institution governed by aging white men. Even the most reasonable recommendations for reform were rejected out of hand and it wasn't until the 1970s that things really started changing. As Moore points out, the last thirty years seems to have produced more change at the law society than the previous 170.
For example, there was a push for a greater presence for women and minorities, not only as lawyers but as benchers-as the society's governors call themselves. But it wasn't until 1983 that the Toronto lawyer Laura Legge became the society's first female treasurer. Moore recounts the highlights of the last two decades of the society, and this was where I had the most problems with his history, simply because I have personal knowledge of, and therefore quite a different view of the events he chronicles. The "milestone" stories of the '80s and '90s are all there, including the loosening of lawyers' advertising rules, the society's failed prosecution of independent paralegals, and the accusations of favouritism toward the Lang Michener law firm in a discipline case. And he mentions the huge scandal of the Lawyers Professional Indemnity Company (the society's captive professional insurer) racking up $155 million in unfunded liability, an event that to this day has exposed Ontario lawyers to astronomical premiums and membership fees.
When these events occurred, I was editor of The Lawyers Weekly, and the paper's journalists wrote hundreds of stories on them, none of which seem to have been looked at in the preparation of this book; at least there's no reference to any of this coverage in the copious end-notes covering each chapter. It's a pity that Moore didn't have a look at this material-or even local daily press coverage-because it goes a long way to explain and not merely document some of the real changes in law society culture over the past decade. What has been used extensively is the law society's internal archives and convocation reports, which don't always offer a rounded view of these unfolding events.
One of the big changes is simply openness. Back in 1985, after a couple of courthouse-steps press conferences, the law society passed a really stupid rule which essentially said that any lawyer who talked to the media could face professional discipline charges. This led to an outraged editorial reaction from many Ontario newspapers, which rightly criticized the measure as both suppressing lawyers' free speech rights and curtailing legitimate court reporting. There was even a petition circulated among the media, and many prominent journalists signed it.
It was after that that the real winds of openness swept though the law society. The rule itself was dumped, advertising rules were loosened, discipline hearings were opened up for press coverage, and the society's convocation-the monthly gathering of benchers-became public.
At some level, the increased press scrutiny and criticism probably were influential-but not a word about this appears in Moore's book. 

Michael Fitz-James is editor of Canadian Lawyer magazine.


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