(January 9, 2023, 1: 19 PM EST) — The Law Society of Ontario (LSO) is seeking to increase its disciplinary powers over members of the legal professions: lawyers and paralegals may wish to take note. In a recent round of proposed “reforms,” the LSO wants to be empowered to compel members to attend “retraining” known as Specified Continuing Education or Remedial Programs (SCERP), a new way of calling members onto the carpet.
According to a recent report, this would be a new remedial power available to the LSO’s Proceedings Authorization Committee (PAC) where there aren’t any reasonable and probable grounds to authorize a disciplinary proceeding, but the committee is still “concerned” about a member’s professionalism or conduct and believes they would “benefit from focused direction or specific guidance.”
Where the questionable conduct is practice-related, it may make some sense to ensure the member is directed to appropriate resources to improve his or her skills. But what if a non-client complaint was made to the LSO about a social media post? Would PAC be tempted to use these powers to compel the “re-education” of a member whose public opinions are unpalatable to members of the committee?
Until last week such a scenario seemed a stretch – consider what happened to Dr. Jordan Peterson.
Dr. Jordan Peterson case
This past week saw Peterson, one of Canada’s most prolific public speakers and writers, taken to task by the College of Psychologists for his social media posts. Someone “out there” complained, and the college got busy. It appears that his regulator intends to reprimand him and require retraining (and
satisfactory proof that the retraining worked), because of those complaints.
One post complained of was a retweet of a Pierre Poilievre tweet – which is in my view, political expression, a sacrosanct right in democratic countries. Importantly, none of the complaints were
from any of Peterson’s actual clients.
The story has blown up internationally. Heavyweights like the Wall Street Journal, Joe Rogan (over 12 million subscribers), and Ben Shapiro (over five million subscribers) discussed (and supported) Peterson’s case.
Canadians too were outraged. The leader of the Conservative Party, Poilievre, took to social media to comment. Howard Levitt captured the sentiment of many Canadians in his Financial Post article questioning the college’s logic and the potential for widespread abuse. Petitions were created, and Peterson, with over six million subscribers, and a bevy of other social media influencers, used their platforms to highlight the issue. The CPO’s modest social media presence took a beating. (Perhaps it
could get some tips from Peterson.)
New powers for LSO’s Proceedings Authorization Committee
A Peterson-type procedure is exactly what the new PAC report recommends for the legal professions – granting PAC the right to force you to be retrained.
The report also recommends granting PAC the unrestrained right to publicly name and shame a member in a public notice without consultation or input by the member on the wording of the public notice. A one-sided reporting or narrative of the events on the LSO website, just waiting for someone to Google-search your name.
Using social media to market your practice, making provocative posts, aligning yourself with controversial issues like a freedom convoy, and even “liking” the official opposition party tweets could land you in hot water under this new regime. You don’t need to believe me, just ask some of my bencher colleagues who have had complaints levied against them based on their social media posts.
Groupthink Committee?
Some benchers have raised concern that these new powers go too far and change the nature of PAC’s role. PAC’s current function, it seems, allows it to deliver a low-key, remedial admonishment to members who made a mistake, and gives those members the ability to acknowledge a shortcoming,
while protecting their reputation and maintaining a semblance of dignity.
The new re-education and public narrative super-powers recommended for PAC could enable the cancel culture mob to label one of your social media posts as an offensive micro-aggression that somehow brings the profession into disrepute, and the LSO would now have a ready-made procedure
with which to turn the thumbscrews. Potentially, one-step forward, two steps back for PAC Is this a new way of forcing woke thought on the profession? Are these recommendations a purposebuilt tool for speech curtailment and indoctrination? I don’t believe that was the intent, but could they be used that way? I know of one clinical psychologist who would say yes.
The report recommendations, if accepted, will change PAC for the long term and provide a powerful subjective measure of judgment over “concerns” that are non-discipline worthy – potentially creating a groupthink committee.
Participate now in a call for comment and have your say, the LSO deadline for comment is Jan. 15, 2023, and remember with bencher elections around the corner ask your candidates about this issue.
The link to the call for comment can be found here and the public report can be accessed here.
Joseph Chiummiento is a securities lawyer, coach and mentor to solo and small Jaw firm owners, and a bencher of the Law Society of Ontario. He can be reached by email at joseph@chiummiento.com.
This article was first published on TheLawyersDaily.ca