President’s Blog
October 07, 2015

In 2010 the Law Society undertook a significant reform, revising its tribunal structure to include non-Bencher lawyers and public representatives on hearing panels. Since the new model was implemented, each panel and review board has included a non-Bencher lawyer and a member of the public.

Including non-Benchers in these panels was a milestone transition, introducing a degree of separation between the prosecutorial and adjudicative functions. It’s a difficult issue that gets at the heart of what law societies do, and the role of Benchers within each society. Each provincial regulator is finding its own way of addressing Benchers’ respective roles as prosecutors and adjudicators. Nova Scotia and New Brunswick do not draw their adjudicators from among the Benchers at all. Others, including Ontario and Manitoba, as well as British Columbia, use a mix of Benchers, non-Bencher lawyers and public representatives. Alberta is the last provincial law society to use only Benchers on hearing panels, but I understand that Alberta is currently redesigning its tribunal program to include non-Bencher lawyers and public representatives.

When we implemented the change to our tribunal structure in late 2010 and early 2011, we provided for a review after three years that would assess progress of the changes, identify any possible improvements, and suggest any further reforms for Benchers to consider.

The review task force, which I chaired, presented its report and recommendations at the September Benchers meeting. Benchers approved the majority of the committee’s recommendations, endorsing refinements to the direction we embarked upon back in 2010.

Some of the approved recommendations will streamline the process. The task force found, for example, that despite a considerable training commitment, panel members averaged only one or two hearings a year. So we will reduce the number of eligible participants in each of the two non-Bencher and public pools from 25 to between 15 and 18. We expect that participants will now put their training to better use by taking part in three to five panels a year.

Another approved recommendation will reduce the number of hearings that have to be rescheduled. The Benchers have created administrative flexibility by allowing Life Benchers to be eligible for services as a panel member for an additional two years, essentially becoming a “spare,” to be used in extraordinary circumstances.

These recommendations were debated fully and openly at the September Benchers meeting. Benchers have acknowledged that separation between prosecutorial and adjudicative functions is important, but at the same time they recognize that serving on hearing and credentials panels is essential to the work Benchers do. Ultimately Benchers decided that they must continue to participate in hearing and review panels because the work gives them an invaluable perspective on the rules they are entrusted with enforcing, and the impact of those rules on members and their clients.

The discussion at the September Benchers meeting was robust proof of the Law Society’s open and transparent decision-making process, and of its continual commitment to refining and improving its processes.