Law Times

Page 6 July 8, 2013 • law Times COMMENT u Editorial obitEr By Glenn Kauth The debate over electing regional benchers T he Law Society of Upper Canada is once again looking at tinkering with the system for electing benchers at Convocation. Many of the recommendations in a new report from the bencher election working group are very minor. They include reducing the number of nominators required for candidates; chopping the maximum number of words in each candidate's election statement in half; and other housekeeping matters. The most significant suggestion is a revamp of the scheme for electing regional benchers. The current system designates the candidate in each region who receives the highest number of votes there as the regional bencher. "This scheme ensures that at least one bencher will be elected in each of the eight regions in the province," the working group report states. The proposed changes would put greater emphasis on the votes from all regions for all candidates. One suggestion would have the regional scheme apply to elect the candidate with the most votes in that area only if a region doesn't have an elected bencher according to the initial results. Under the second consideration, the popular vote would determine who becomes the regional bencher from a particular area. Such a scheme would emphasize the candidate who receives the most votes across the province. It's this second option that the working group is recommending. "In the working group's view, one of the unintended consequences of the scheme is that candidates with many more votes (based on votes from voters in all regions) than the regional bencher may not be elected, including other candidates in the regional bencher's region," the report states. "Thus, candidates from regions who demonstrated broader support from the members were not always the bencher elected." The options outlined are merely recommendations for the moment as the law society is now consulting the profession on the issue over the coming months. Part of the impetus is to respond to continuing concerns about voter turnout during bencher elections. While the report notes the initial push for a regional bencher scheme was to encourage interest in the election, the results so far have been disappointing. "Rather than higher voter turnout in the elections that followed implementation of the scheme, voter turnout actually fell after 1995 until 2011," the report states. The recommendation, the report suggests, "will ensure there is at least one bencher elected in every region from the general vote. It will preserve the benefits of regional benchers while giving more weight to the overall democratic process." The recommendation, then, is reasonable. While some may worry about the dilution of the power of the regional votes in electing a bencher for a particular area, it's certainly reasonable to expect representatives to balance their duties to a local constituency with their obligations to the province as a whole. But what the changes won't do is make a big difference to voter turnout. They may influence candidate and voter behaviour in small ways but they're hardly radical reforms. Ultimately, the decline in voter turnout is commensurate with broader societal trends. Whether it's general apathy or overall fatigue with the actions and approaches of elected bodies, voters everywhere are tuning out. The big question is how to engage people again, and few institutions have figured out a lasting answer. So let's welcome the debate about the proposed changes to electing regional benchers. But it's clear there's much more work to do when it comes to getting people to vote again. — Glenn Kauth Think carefully about pro bono retainers T he pro bono retainer is a quandary. When would you agree to act for free? Sometimes, what goes around comes around. There's a virtue in assisting the indigent and, conversely, there may be a benefit for you as you may act for the client in the future on a paid matter. In addition, it may help build your name and reputation. But when does it work for you? When should you act for free? Some work is extremely urgent and time sensitive, such as advice to an arrestee or assistance with bail, and there may be no time for a retainer. Some lawyers will do a trial for free but probably not many. (I could give you his name, but he might get mad at me.) If I feel strongly enough, I have done my own clients' appeals for free, but don't make the mistake of not getting the disbursements up front. It may turn out that you have a greater commitment to your client's cause than he or she does. One of life's little legal ironies is that the Law Times cold cash six months later. client who pays for legal work Some may value it more than the one A Criminal breakers. of those are deal And any sort of who doesn't. Mind complaint or rudeness to It's never ideal to act for you or your staff is also a deal free, but if it's a matter of doing breaker. negotiations, getting the matBut let's go back to that ter diverted — even though concept of lawyers working the work may be worth a great for free. I'll always recall a deal of money — the lawyer's client who had been on weltime input isn't considerable. fare for life and was facing But maybe it is. The client may her 13th or 14th shoplifting not be anxious to wrap up the Rosalind Conway charge. I suggested she do case in a timely manner. It's not some volunteer work and acceptable for counsel if clients are continuing to do their volunteer she said, "What? You mean work? For work the following year, nor does a lawyer free?" I was gobsmacked. The public thinks it's salutary if lawyers want to hear that a client has blown the work for free, and we even have a special restitution money on fancy shoes. What I've found surprising in practice name for it: pro bono publico. But clients are the varying attitudes of pro bono clients. often don't complete community service Some are a pleasure to act for and will repay hours whether they're for diversion or you with flowers; others will drop off some pursuant to a probation order. Retainer agreements aren't common rancid plonk. Some will let you wait for hours in court because no one paid their among criminal lawyers, and I've rarely bus fare; others will actually come in with used one. Ideally, I e-mail a retainer let- Thomson Reuters Canada Ltd. 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If you can no longer act for the person, you should write a disengagement letter but you can't jeopardize your client's representation by removing yourself from the record precipitously whether it's a pro bono arrangement or not. When representing people on a pro bono matter, clients should keep up their end of the bargain: pay the disbursements, make appearances, stay in touch, do the volunteer work, attend any programs, and pay the restitution. And it's always good to ask yourself whether clients are even serious about the matter if they haven't retained you in the conventional way. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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