Your ruiners and your destroyers will come from within you.
— Isaiah 49:17
How I learned of the latest scandal to rock Osgoode's hallowed halls was typical. I stopped at a bus stop to give a lift to a colleague, and as soon as he seated himself in my car he asked, "So what do you think of the bar ad students who cheated?"
When I replied, "It's news to me," he said I had better read the front-page story in that day's Toronto Star ["Cheating probe ends abruptly; Law students' e-mails probed; Governing body sworn to secrecy," Toronto Star, July 16, 2004].
The story said 13 articling students had been investigated for collaborating on assignments that were supposed to be independently done. It also said the investigation had threatened to put the students' promising careers at prestigious Toronto law firms on hold.
When the investigation was halted, with no further action to be taken, an e-mail was apparently sent to a handful of Law Society of Upper Canada employees warning them not to provide any information about the matter to anyone, including other employees and law society benchers.
It would not be appropriate for me to comment on the results of the investigation for I do not know all the facts, but if the newspaper report is correct it gives rise to a number of disturbing questions.
The first hearing I participated in as a bencher was an admissions matter. A student who had completed the Bar Admission Course but had not yet been called to the bar was alleged to have fudged his marks on an application for a legal scholarship. The hearing before three benchers concluded that the student's explanation was credible and unshaken. He was found to be of good character and worthy of admission to the bar.
That case involved a single student who did not have a gilded career lined up. Are 13 students who have positions arranged with prestigious Toronto law firms treated with more delicatesse? Would it not be prudent in all cases of this nature to present the results of the investigation to the proceedings authorization committee, which is composed of the chairman of the discipline committee and two other benchers, and let them decide whether it is appropriate for an admissions hearing to be held?
In the e-letters that flew back and forth among benchers on the day the story appeared, one bencher noted it cast the law society and several senior members in a negative light. That's an understatement. While he appreciated benchers cannot micromanage, he said serious issues that fall within the purview of Convocation were raised and an in camera meeting should be held to advise benchers.
Another bencher responded that benchers are potential adjudicators and should not and cannot be privy to ongoing investigations; if the process of investigation is flawed, that may need attention, but not necessarily from benchers.
All I know is, a culture of secrecy permeates Osgoode Hall, from the benchers at the top of the pyramid, to the bureaucratic infrastructure below. It starts at Convocation, which spends an inordinate amount of time in camera, and includes committee and other meetings which are in camera too, as well as meetings between the treasurer and the committee chairs. We need less in camera, not more. Is it any wonder the society's civil servants emulate their masters?
I am a bencher who is not a member of the inner sanctum. I only know a fraction of what transpires at Osgoode Hall. I suspect that many of my fellow benchers are no better informed than I am.
The Star article exposes a serious flaw in the model of policy governance; Convocation is supposed to set broad policy and keep its hands off administration. In essence, the captains of the ship are kept ignorant of what's going on in the engine room until the vessel runs aground.
Integrity is the bedrock of our profession. The law society's flowery mission statement and rigorous programs to ensure high professional standards and competence are all for naught if we do not ensure the integrity of practitioners and of the students we call to the bar.
Nothing brings our profession and its governors more into disrepute than reports such as appeared in the Toronto Star. If we do not regulate the profession with more transparency, then we do not deserve to regulate it at all. Indeed, reports such as this will continue from time to time to appear, and their cumulative effect will ultimately prove fatal to our self-regulation. The issues the Star story raised deserve a prompt response from the treasurer, after an informed consultation with benchers, and I hope by the time this column is published the profession and the public will have received that response.
The law society should also retain a retired Supreme Court of Canada judge to investigate the culture of secrecy at Osgoode Hall and the entire regulatory process.
Gary Lloyd Gottlieb, a Toronto sole practitioner, is a Law Society of Upper Canada bencher. His e-mail address is glgqc@interlog.com.