John F. Fagan

Lawyer Bencher Candidate – Toronto Region

Priorities

In the short term, the most urgent issue facing the legal profession in Ontario today is the need to get The Law Society’s well-intended but misguided “Statement of Principles” requirement repealed as soon as possible. If we don’t get the requirement repealed quickly by democratic means, and we have to leave it to the courts to extinguish the requirement for us, the general public will have the right to wonder whether we know what we’re doing at all, in running our own profession. Then, too, as long as the “Statement of Principles” requirement remains on the books, the resentment and uproar over it will be roadblocking actual improvements, not only on the Equality, Diversity and Inclusion front, but also on other fronts, on all of which our co-operative collective action is needed. Once the urgent matter of repealing the “Statement of Principles” requirement has been attended to, we can and should turn our attention to the huge and long-festering (and much tougher to solve) issue of the unacceptably high financial costs involved at all stages in producing lawyers, and in their thereafter being able to provide legal services. Lawyers’ educational and operating costs have grown so high that their consequently necessarily high fee levels are beyond the capacity of most potential clients to pay. This is an access to justice issue of the highest order. Please see my comments on these topics elsewhere among my responses on this site.

Background

I was in small-firm general legal practice, mostly in the former City of North York, for 16+ years after my 1975 Call to the Bar. I then spent 19+ years, until my 2011 retirement, based in Oshawa as a roving Tax Prosecutor for the Attorney General of Ontario. I’m U of T Law ’73. I belong to the Canadian Bar Association, to the Toronto and Durham law associations, and to the Canadian Civil Liberties Association. I’ve run for office several times for the NDP, including provincially in 2011 and 2014; young people are now taking charge on that front. In law and in riding politics, I’ve always enjoyed mentoring the new recruits. Born and raised in Brooklyn, New York, I migrated to Canada in 1969, during the Vietnam War.

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Candidates I support

I support all the bencher candidates pledged to vote for the repeal of The Law Society’s “Statement of Principles” requirement. Please see the website, stopsop.ca .

Something the LSO does that it should stop doing

The Law Society should stop spending time and money on attempted “rebranding.” Whose idea was it that the general public would be impressed by our having changed the Society’s name? For that matter, how did the benchers who approved the name change, fail to anticipate the anger that the change would engender among the Society’s members?

Something the LSO doesn't do that it should start doing

The infusion of more provincial and federal taxpayers’ money will regrettably be required, if there are to be realistic attempts at solving today’s problems facing Ontario’s justice system and impeding the ability of the province’s legal profession to deliver services to people who need them. Unfortunately, I believe that The Law Society will have to become involved in more effective lobbying of government for money. It hasn’t helped the justice system, or the ability of lawyers to do their work, that relatively fewer lawyers are running for public office these days. We have to make up for our loss of influence in the halls of government these days.

website

stopsop.ca

email

johnffagan@gmail.com

social media

All Candidates were invited to comment on any or all of the following topics

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Too many people have been trying to wrestle with legal problems without lawyers’ assistance. An unwise step in attempted response has been the recent move toward replacing lawyers with paralegals in further aspects of family law work. High operating costs have also apparently led to some law firms’ being tempted to send parts of their corporate/commercial work “offshore.” Cost issues have also contributed mightily to some lawyers’ ruminating about abandoning articling as a required step to bar admission. Replacing lawyers with paralegals in further aspects of family law, sending legal work offshore, abandoning articling? There must be ways for us to attack the problem of the costs of providing legal services in Ontario, without our having to throw the baby out with the bathwater. I would add that until we solve this excessive costs problem, young lawyers who lack family or other financial backup when they are trying to start out, will continue to find it very hard to make it through.
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To try to avoid LSO governance errors, we must somehow get the profession at large more interested and active in such governance. Changing the number or mode of selection of benchers is not the key; greater buy-in by the profession at large is the key. Step One in this direction would be to restore the status of Ontario-bar-admitted lawyers to that of “members,” and not mere “licensees,” of The Law Society. When we let ourselves be downgraded to mere “licensee” status about twelve years ago, I think we unfortunately gave the benchers of the day the impression that the profession at large was not much interested in Law Society governance; we have to reverse that impression.
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Law school tuition is much too high. Heavy lobbying of our provincial and federal governments, and their taxpayers, will be required to get more public money made available to reduce law school tuition. Effective pressure will also have to be applied, though, on our universities and law schools, to cut costs. If voluntary associations of lawyers could get this lobbying and application of pressure done well enough, that would be ideal, but it certainly seems that The Law Society will have to become involved. Meanwhile, the profession should not be sliding toward a situation in which overall post-law-school bar admission costs get any heavier. Please see my comments in the “Pathways to Licensing” section of this presentation.
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The Law Society’s “Statement of Principles” requirement, though no doubt well-intended, is an instance of unjustified compelled speech, is without legal or regulatory foundation (“promoting diversity” is not the same thing as “not permitting discrimination”), and is, in any event, counterproductive, as far as actually helping members of traditionally excluded groups get ahead in the legal profession is concerned. I want the substantive goals of The Law Society’s overall EDI program to succeed, and not be hindered or compromised by the well-founded resentment and uproar which will continue to boil over the “Statement of Principles” requirement as long as such requirement remains on the books. I will work for the prompt repeal of this misguided requirement.

Artificial Intelligence in Legal Service Delivery

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Watch out! We must guard against technology, and those who own and command the processes of it, becoming the masters of the profession. Substance and content in the brains of individual lawyers, over processes playing out on screens, or we are lost.
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We should avoid the settling-in of any permanent “two-tier” system of pathways to licensing. To save the articling system, by getting more articling jobs opened up, we would have to devise a way of spreading around to the profession at large, at least part of the cost of providing those jobs. Some other Law Society expenditures would have to be curtailed. [We would also have to reduce (and not increase!) the administrative burden placed on lawyers who take on articling students.] In the alternative, if finances were to dictate that articling just could not be saved, then we should probably have all bar admission aspirants take the recently-devised alternative-to-articling path — but not at significant further financial costs to the aspirants!
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Expand to read John's views
Expand to read John's views
There should be no such new duty imposed by The Law Society. Let the practice exigencies of a lawyer or paralegal continue to dictate whether and to what extent that individual decides to invest time and/or money on technology competence. Also, beware of any trend that elevates process over substance.

Reconciliation and Indigenous Communities

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Is there anything that The Law Society can and should be doing to help ensure that the project of the new law school at Lakehead University succeeds? Are new lawyers from, and serving, indigenous communities, able to obtain adequate mentoring? (Indeed, arranging for adequate mentoring for new lawyers in general seems to need more Law Society attention.) More generally, what can those in the legal profession do to assist the people of the indigenous communities of Ontario to be better heard? I would wish, as a bencher, to try to assist in this area. In this connection, for starters, have we ever acknowledged, and celebrated, as a group, the finite number of lawyers from the indigenous communities of Ontario (and of Canada in general) who have been toiling in the vineyards as such for the last forty years or so?
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This is a danger area. I’d have to hear much more about the reasons why we should even consider going down the road of alternative business structures in the practice of law, before approving any budging in this area.
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Specific Enhancements to Licensing System

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Expand to read John's views
The Law Society should indeed be in the CPD business, but only to the extent necessary to ensure that adequate multi-subject CPD is going on around the province, and not as an LSO moneymaking venture. The various voluntary lawyers’ associations, and the law schools, could be encouraged to be the main front-line providers of CPD. The Law Society could fill the gaps, and would in any event have to be keeping an eye on things from the standpoint of quality control.
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The Law Society should reduce, not increase, bureaucratic requirements imposed on lawyers and paralegals. If the Law Society budget has to be tapped to ensure that new lawyers and paralegals have access to adequate mentoring, other Law Society expenditures should be scrutinized for potential savings. One supportive thing that could be done right away, would be to restore the status of Ontario-bar-admitted lawyers to that of “members,” and not mere “licensees,” of The Law Society. (Ontario registered-with-The-Law-Society paralegals could and should be “paralegal members” of The Law Society.) The downgrading of our status with The Law Society from that of “members” to that of mere “licensees” twelve years ago or so, sent all the wrong signals to the rank-and-file lawyers of Ontario. It’s now time to reverse that downgrading.
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Expand to read John's views
We should stop spending money on “branding” advertising. The articling system, if it’s to be saved, will likely somehow have to be subsidized by the profession as a whole, and we should indeed save the articling system (for all bar admission aspirants), if that’s possible. I look forward to more discussion in this area, as the various bencher candidates delve more deeply into Law Society finances. I must say that I am alarmed at the size of The Law Society’s budget.

Diversity and Inclusivity Priorities

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We should promptly repeal The Law Society’s “Statement of Principles” requirement (which will never, in any event, assist anyone in attaining any advancement in the legal profession), before more time and goodwill are lost arguing over it. We should collectively confront the provincial and federal governments and their taxpayers, and the universities and law schools, and make clear to them that the high costs involved in becoming a lawyer these days are unacceptable, and are retarding the advancement of diversity and inclusion in the legal profession, and consequently in society at large. We should solve the crisis of the shortage of decent articling jobs, without permitting the permanent settling-in of any “two-tier” system of bar admission streams. Many of us should spend more time mentoring those junior to us at the bar.

Scope of practice for paralegals and non-licensees

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The permitted scope of paralegal practice is currently about right. Nothing should be done to encourage practice by non-licensees. Getting more money into the Legal Aid system, and reducing the costs of legal education and practice, should be the questions of prime focus, not expanding permitted areas of practice by non-lawyers.

FOLA asks: Thoughts on Funding Staffed Local Law Libraries

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How do we get more lawyers to join and fund their local law associations? Is there anything The Law Society can appropriately do on that question (other than work and lobby for the reduction of legal education and practice maintenance costs, so that local law association membership dues room can be found in more front-line lawyers’ budgets)? I believe we certainly should have staffed local law libraries in all the county seats around the province. I look forward to learning more about how we might ensure the adequate ongoing funding of such libraries, as the current bencher campaign proceeds.

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