This article was authored by David Garson, who is certified by the Law Society of Ontario (LSO) as a specialist in immigration law and the Founder of Garson Immigration Law in Toronto, Ontario, and Betsy Kane, who is certified by the LSO as a specialist in immigration law and a Founding Partner of Capelle Kane Immigration Lawyers in Ottawa, Ontario.
As many know, the Law Society of Ontario, after no meaningful consultation, voted at the May 2022 convocation to discontinue the Certified Specialist designation program as of January 1, 2023. The program was to continue for Indigenous law practitioners, to recognize the designation’s critical role in the LSO’s Indigenous framework and commitments to reconciliation.
This announcement was extremely surprising and disappointing to those that had attained this designation through their expertise, hard work and dedication to their area of practice.
There were several reasons why this decision was considered unfair, and to be blunt, extremely wrongheaded. As alluded to above, there was no real consultation with the profession, the public or the certified specialists themselves. The stated reasoning behind it, was that there was no scheme to monitor whether the specialist was maintaining their skills in an ongoing fashion and “only 2 per cent of the profession were taking part”.
Now, any sensible person would understand that if someone is designated as a “specialist” they are not meant to be in the majority. They are presumed to have achieved a certain level of competence and integrity within their field, and for this they are recognized. The Law Society was basically saying that they cannot distinguish amongst practitioners and publicize that there are members who may have more expertise than others. The rationale being that it would be unfair to all practitioners and those who cannot meet the specialist criteria or chose not to seek the designation at all.
How is this fair to the public? Are they not entitled to choose those who have achieved a certain level of expertise or experience? And isn’t part of the Law Society’s mandate to protect the public?
Further, the argument that specialists did not have to demonstrate an ongoing level of competence is to use a legal term, “nonsense”. A specialist must demonstrate many hours of professional and ethical continuing legal education and maintain a singular focus on one area of practice. As well…if the Law Society truly was concerned about this issue, then they could consider imposing further requirements that could be mandated on an annual or bi-annual basis, including review and consultation with governing bodies in other jurisdictions. They would not immediately move to scrap the entire program in an expeditious fashion.
In the field of immigration law, we are literally forced to constantly keep up with the national news, read policy changes, and continually look out for practice and procedural updates, government news releases, disclosures under the Access to Information Act that explain government operations. Moreover, we must read legal bulletins, jurisprudence, list serve postings and attend seminars just to keep current and competent in our rapidly changing field. The amount of time we must spend in this regard would easily surpass any requirements mandated by a specialty program.
There is an underlying aspect to all this that is particularly vexing. The plan to eliminate the certified specialist program involves our regulator saying that we can no longer differentiate amongst practitioners, as it would be unfair to those who choose not to distinguish themselves. The goal being to democratize the practice of law for all and minimize the value of merit and the pursuit of excellence.
This move to a seemingly bias-free membership model, is undermined by the fact that the Law Society of Ontario had chosen to maintain the certified specialist program for indigenous law practitioners only. The objections of the committee to the certified specialist designation magically did not apply to those in this area. Why is that? How can that be? Are the requirements not the same? Sadly, this has nothing to do with a lawyer’s competence, or the public’s right to be protected, but solely focused on what is socially acceptable. It is cynical and weak to ostensibly take a stance and then run away from your principals.
Going forward, will the LSO pick and choose which areas of law they consider meritorious of a certified specialist designation? Could the LSO offer the certified specialist designation only to those practice areas where there is a finite number of practitioners province wide or where the area of law encompasses members of underrepresented groups? Could the elimination of the certified specialist program today serve to strip existing holders of the title for a period, only for the program to be re-launched at some point in future? Perhaps once too many exceptional areas of practice are recognized under the new parameters of a certified specialist program, practitioners will call for the return of a program that recognizes all areas of law?
The LSO plan to wind down the certified specialist program left practitioners wondering what other reasons were behind this sudden change. It is true that lawyers in other provinces do not have the option to secure a C.S. designation, as only Ontario offers a certified specialist program. So, could this decision also be a way to “level the playing field” with colleagues from across the country?
Over time, certified specialists have paid a great deal of money to the LSO for their designation once they were recognized. Will this money be refunded? Most likely not.
What of those who have had the C.S. designation behind their names for several years? If the designation were to be eliminated, how are they to represent themselves? What is their explanation to those who ask about the change in credentials?
The questions raised by the LSO’s plan to eliminate the program for all areas of law but one, explains the significant backlash from designated practitioners to these measures. The response from the bar was likely much more contentious than the LSO anticipated, which may speak to their detachment from the profession. Individuals wrote articles, circulated petitions, and wrote vitriolic e-mails on List Serves.
There was no real hope that the Law Society would reverse their decision, as historically they have been rigid in this regard. But, surprisingly, on September 29th 2022, the LSO suspended the winding down of the specialist program pending “further consideration”. Convocation referred the recommendation of the Competence Task Force regarding the program to the Professional Development and Competence Committee for reconsideration, including consultation with the profession. The committee must report back before the end of 2023.
Ok, so why did they momentarily pause? Because they were wrong. Wrong, as to how they went about it. Wrong as to how they tried to implement it. Wrong about their intent. Wrong in the way they thought it would be perceived. And wrong as to what is in the public interest.
This does not mean they are giving up on the idea of eliminating the program. It just means that they may be looking for better articulated and more acceptable justifications to do away with the program. It is imperative that we convey to the LSO and the public, the repercussions of haphazard, ill-conceived decisions that appear to be based on political correctness rather than well-reasoned criteria that champion accomplishment and recognition in the practice of law.
The pursuit of excellence in one’s field should be celebrated and encouraged. It should not be a point of contention. The Law Society of Ontario should be an organization that supports its members to be the best that they can be. Over the next year, we must continue to press upon the Law Society that the certified specialist program is one worth preserving. It is a program that can continue to be used to motivate and inspire practitioners to achieve. After all, many independent organizations conduct merit-based assessments of lawyers across Canada and worldwide. Organizations such as Lexpert, Who’s Who Legal, Chambers and Partners, Best Lawyers, amongst others, offer research-based rankings of lawyers globally who have been recognized for their expertise. Lawyers in every jurisdiction across Canada and in most fields of law, can be ranked by these organizations. Some lawyers may choose to pay for a personal profile in these directories to augment their reputation and/or drive business development. However, a paid profile is not mandatory to be recognized as a leading practitioner by these publications. Will the LSO also be seeking to disallow publication of those lawyers in Ontario who appear in such publications to enhance equality and fairness amongst practitioners in the province?
We should make the most of the time we have to advocate for the preservation of this designation. At the very least, the LSO should allow those who have been recognized as Certified Specialists to maintain their credential so long as they maintain membership in good standing with the Law Society of Ontario.
The LSO has undergone significant changes in leadership in recent years. As bencher elections are on the horizon, it behooves us to pay careful attention to those running for office and take the time to ensure we elect representatives that support the attainment of excellence in our profession.
