The Profession

New benchers must stay mindful of all issues within mandate

By Staff

While a new group of Law Society of Ontario (LSO) benchers were seemingly elected to get rid of the Statement of Principles (SOP), they also need to be aware that they are serving a four-year term to govern the profession in the public interest — which is the statutory LSO mandate, Toronto lawyer and arbitrator Earl Cherniak writes in The Lawyer’s Daily.

As Cherniak, partner with Lerners LLP and a former LSO bencher, explains, he objected to the move that made it mandatory for every licensee to subscribe on the LSO Annual Report form to the Statement of Principles (SOP).

The SOP requires licensees to “create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.”

Cherniak, who served as a bencher from 1999 to 2007 and did not run in this year's election, notes he opposed the SOP not because of its content, but due to the compelled speech.

“I made my position clear publicly from the outset. I and my firm abide by, and indeed exceed, all federal and provincial human rights codes and laws, and I abide by the Rules of Professional Conduct. I have my own personal code of beliefs and conduct, learned from my parents, teachers and those I respect, that exceed the SOP,” says Cherniak.

“My code is personal to me and is only incidentally related to the fact that I am a lawyer, though I abide by them in my practice. But no one can require me to subscribe to a code or statement as a condition of my practice or otherwise. I was outraged and offended at the time, and remain so, that there were some who labelled those who took a position similar to mine ‘racist,’” he adds.

At the same time, he says, he did not support the fact that a group opposing the SOP put forward a slate of candidates in the recent bencher election, and did not vote for anyone because they were on the slate.

“The LSO has many important issues to deal with, and no single issue trumps all the others, except, perhaps, self-regulation and the independence of the bar. Like almost everyone else, I am amazed that the slate prevailed. Clearly, a nerve in the profession was struck. It is very sad that so many able benchers who deserved to be re-elected were the fallout. I voted for most of them,” he says.

Cherniak writes, there were and are so many other ways to address the spectre of racism in the profession — for example, equivalent principles could have been included in the Rules of Professional Conduct, to which every licensee must conform.

Ultimately, says Cherniak, the elected ‘StopSOP’ slate of benchers will face many issues in their term where the public interest and that of the profession do not coincide — and while they can often be reconciled, this is not always the case.

“Ensure that you are mindful of your mandate and duty on those occasions. The self-government of the profession and the independence of the bar depend upon your doing so,” he says.

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