John Arkelian

Lawyer Bencher Candidate – Central East Region

Priorities

The face the Law Society projects to its members is one of unaccountable and undemocratic governance — the face of an organization that is too often impenetrable, heavy-handed, bureaucratic, curt (rather than courteous), and coldly unreceptive to input by its members. The Society ought to reinvent itself to present a more humane, collegial face. To start, the Society should request the provincial government to amend the Society’s mandate. In addition to protecting the public interest, the revised mandate should also direct the Society to protect the interests of both the legal profession and Law Society members. A paramountcy clause would stipulate that in the event of a conflict between those objectives, protection of the public interest would always take priority.

The Society’s charter should also explicitly state that a key function of all Benchers is to serve as elected representatives of the Society’s members, accountable to them (perhaps through some kind of forced recall provision) and readily accessible to their concerns.

At present, Society members are without any meaningful input into their own governance. Provision used to exist for any member to easily petition Convocation on issues of concern to that member. However, it appears that said “Petition to Convocation” procedure was quietly discontinued years ago, leaving members without any mechanism for getting a complaint, concern, request, or proposal before the body empowered to govern them. How is it compatible with democratic governance to leave members utterly bereft of any way to put a matter before their own governing body? Every member should have an absolute right to communicate any matter directly to Convocation, to thereby have Convocation seized of said matter, and to promptly have said matter deliberated upon and decided by Convocation.

Background

My professional experience has run the gamut from international diplomacy to courtroom advocacy. I have represented Canada abroad as a diplomat, responsible for political, security, and consular relations. I have advised the Government of Canada on issues of international and constitutional law, co-authored Canada’s brief in the infamous Sidney Jaffe international kidnapping case, instructed Canada’s delegation to NATO, and drafted both new federal legislation and international treaties. As a Federal Crown Attorney, I conducted criminal prosecutions in Toronto’s busiest courtrooms. As a Professor of Law and Journalism, I taught such subjects as defamation, copyright, and criminal procedure. As an award-winning public interest author and journalist, I have written extensively on international relations, human rights, ethics, public policy, and law reform.

I am extremely active in my regional community, where I have directed cultural NGOs, founded a successful international film festival (that has thus far screened over 600 feature films to 29,000 people), founded an internationally acclaimed magazine of arts and ideas, and been a candidate for Parliament.

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Candidates I support

Something the LSO does that it should stop doing

The Society should discontinue its needlessly arbitrary practice of recording the names of members as they appear at christening and instead rely on members to provide, in good faith, the form of their names by which they are actually known. A member’s ‘common-use name,’ combined with their date and place of birth and their unique membership number, is ample to distinguish one member from another. Indeed, common-use names are routinely used for Canadian passports, Ontario driver’s licenses, and Ontario health cards. If a member’s common-use name is sufficient for those purposes (which it is), it likewise ought to be sufficient for the Law Society. By instead insisting on using members’ christening names (names by which no one may know the member or which the member may never even use), the Law Society is being presumptuous, not to mention unjustifiably meddlesome and heavy-handed – all without any good cause.

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

At present, practices governing fees and malpractice insurance do not favor a member working part-time. Those practices should be amended to make it easy and affordable for members to work part-time, by, for example, instituting a true pro rata formula that would enable members to do even piecemeal work. For a whole host of reasons, including (but not limited to) pregnancy, child care, and semi-retirement, members may wish (or be able) to do only part-time work as lawyers. The fees and malpractice insurance regimes should make it easy for them to do so.

The Society should avoid adopting compulsory “one size fits all” practices when it is possible instead to give members the freedom to choose the approach that suits them best — a case in point being the unnecessary imposition of mandatory “e-filing,” without regard to the well-founded qualms some members have about the reliability, security, and privacy of anything done online. Members should be free to elect to file annual reports, receive annual fee notices, and get other communications from the Law Society by hard-copy mail or by email, as each member sees fit.

website

None per se, but my principles and priorities can be readily gleaned from the award-winning magazine I created: Visit its online edition at: http://artsforum.ca

email

johnarkelian@yahoo.com

social media

http://artsforum.ca; and my page at LinkedIn

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

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The Law Society should be extremely concerned with the totally unacceptable lack of access to justice prevailing in this country. Our system of justice is premised upon the blatant fiction that people can pursue their rights through the courts. But most people cannot begin to afford to retain a lawyer for litigation cases. Consequently, too many people are obliged to abandon their rights altogether or to struggle to represent themselves. That renders our system of justice a dysfunctional failure. The Law Society and Legal Aid Ontario (LAO) must urgently seek ways of addressing this unacceptable situation. Would it help to substantially increase the funding and the coverage of Ontario Legal Aid? Very probably yes; which means that LAO and the Law Society should vigorously advocate those changes.
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The Law Society is in dire need of comprehensive reform and, indeed, re-imagining, from top to bottom. See my “priorities” section, above.

In an effort to get more members involved in their own governance, a new term limit should restrict any member from serving as a Bencher for more than two terms over the course of their career.

Tangible, measurable, and enforceable methodologies need to be devised and implemented to ensure that members are treated with courtesy. A letter from the Law Society should never induce a feeling of dread. Fairness, civility, and cordiality should be the sine qua non of all Law Society interactions with its members. The Law Society should look and act the part of an open, accountable, and modern regulatory organization, and not act the part of a medieval ‘Inquisition’ through terse, arbitrary, or needlessly threatening communications with its members. Cordiality (of both tone and practice) should extend even to those who may be under investigation for possible infractions of professional obligations.

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Continuing legal education (CLE) is a positive thing to encourage. But, instead of imposing ever stricter mandatory requirements (of a specific number of hours of officially-sanctioned programming), why not instead create meaningful incentives to encourage members to undertake, of their own volition, as much continuing legal as they can? Incentives like cumulative reductions in malpractice insurance premiums and membership fees could serve as a tangible benefit for the documented completion of CLE programs. Encouraging members to maintain their lifelong learning activities is better than coercing them. The Society was right to offer an array of free CLE programs. But there are far too few free ones! Most other programs (offered by the Society or by other providers) are onerously expensive for some members. And CLE programs need to be offered in members’ own regions, not just in distant downtown Toronto.
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I oppose the imposition of a compulsory Statement of Principles. Lawyers are already rightly bound to abide by specific ethical and behavioral standards. And, as representatives of the justice system, our own sense of personal and professional integrity creates explicit and implicit expectations about our actions and demeanor. To do more is unduly meddlesome – an example of “mission creep” or “empire building” by a regulatory organization that is already far too arbitrary, unaccountable (to its own members), and bureaucratic. As lawyers, we are called upon to respect and support the law of the land, and, in particular, constitutionally entrenched rights and freedoms. Imposing a “political correctness” standard and potentially infringing on our freedom of speech and conscience is needless over-reach by the Law Society.

Artificial Intelligence in Legal Service Delivery

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Members should be refereed to as “members,” not as “licensees.” Referring to us as “licensees” is one small (but all too typical) indication of the Law Society’s current corporate culture of coldly bureaucratic aloofness. Changing the term back to “members” would be an outward, symbolic sign that the Society is reinventing itself with a view to taking on a humane, collegial face.
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Although I am favorably disposed to the offering of unbundled legal services in principal, I need to learn more about this issue before commenting.
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No such duty need exist, unless, of course, a lawyer holds out that he/she is competent in the use of technology.

If the nature of a potential client’s need for advice or services is such that the lawyer acting for said client would reasonably be presumed to have such competence, then it is the duty of the lawyer to promptly disabuse the prospective client of that expectation, should technology competence not be within that practitioner’s skill-set.

Reconciliation and Indigenous Communities

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Like diversity and inclusivity (below), the approach of members to reconciliation and indigenous communities should be left to the goodwill, honor, and integrity of members themselves, not mandated from ‘on high’ in a meddlesome exercise of political correctness. If a majority of members demonstrably support specific initiatives – for example, seeking intervener status in constitutional litigation touching on issues like reconciliation – it may be appropriate for the Law Society to do so on a selective, case-by-case basis. However, it is not the proper role of the Law Society to interfere with its members’ freedom of speech or freedom of conscience, or to seek to promulgate a standard of political correctness in the areas of social conscience. Instead, it should, with its members’ consent, act as an intervener in litigation cases involving constitutional issues like separation of powers, fundamental fairness, and misuse of the ‘notwithstanding clause’ in Canada’s Charter of Rights & Freedoms.
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Specific Enhancements to Licensing System

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The existing bridge between ‘administrative suspension’ (for failing to file forms or pay fees on time, for instance) and ‘disbarment’ should be eliminated. Currently, members who are under administrative suspension can be automatically disbarred, without a separate process or hearing, if they remain under administrative suspension for a year or more. There should be no causal link between administrative suspension and disbarment. Disbarment should be a separate process – restricted to disciplinary offenses and resorted to only after a full and fair hearing. For its part, an administrative breach should result in no more than an open-ended suspension of a member’s license, a suspension that would remain in effect indefinitely — until the breach that activated it is resolved. There should, accordingly, be an impenetrable barrier between administrative breaches (and the suspension in which they can result) and disciplinary offenses (and the disbarment in which they can result).
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Yes, if that’s the only way to get more free continuing education programs. (See my answer to Question #5, above, on the cost of legal education.)
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Instead of paying annual membership fees set at 25% of the full fees, as is now the case, members who are retired and not working in any remunerated capacity, and all members who are unemployed for any reason, should be exempt from membership fees for as long as they remain unemployed.

Every member of the Bar of any province or territory in Canada should have an automatic right to transfer their membership to the Bar of any other province or territory (without any requalification) should they change actual residence from one part of Canada to another. To the extent that that is not already so, it should be a priority of the Society to make it so, in collaboration with its organizational counterparts across Canada.

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The cost of Society membership fees and malpractice insurance is grossly excessive. Every function of the Society ought to be carefully scrutinized in an effort to reduce the size and cost of the Society’s bureaucracy. For example, maybe the Society could utilize a collective management model and do without a CEO and a Treasurer.

The Society should undertake an intensive examination of its practices, with a view to developing “best practices” for the operation of the Society. That means ensuring that members are never treated as ‘guilty until proven innocent’ by the Society; according members and the public the most open and accommodating access to due process that human ingenuity can devise; and ensuring strict confidentiality – so a member can write in confidence to a Society staffer or officer and have that confidence respected.

Diversity and Inclusivity Priorities

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Diversity and inclusivity should be left to the goodwill, honor, and integrity of members. I am not enthusiastic about ‘affirmative action’ approaches – i.e. giving preferential treatment to individuals or groups who someone deems to be under-represented or under-privileged. A better, fairer approach is to insist on merit as the sole criterion for accessing legal education, and, at the same time, ensuring that those who possess said merit but lack financial wherewithal have access to merit-based financial assistance. Lack of financial means may flow from minority status, but it is the financial hardship, rather than a designation as being in an under-represented group, that should be the trigger for financial aid. It would be nice if professional membership roughly reflected society’s make-up – in terms of gender, skin tone, ethnic origin, and so on. But an artificial system designed to make that happen is unjust and uncalled for.

Scope of practice for paralegals and non-licensees

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It is unclear why one regulatory body should be responsible for two separate categories of members – lawyers and paralegals. Doctors, nurses, and paramedics all provide health care services (as, in a broader sense, do pharmacists and dentists); but doctors, nurses, and paramedics are not governed by the same regulatory body. Combining lawyers and paralegals under one regulatory roof seems rife with the potential for conflicts of interest.

Surely, no one contends that the services provided by paralegals and by lawyers are interchangeable. It may be tempting to expand the remit of paralegals to address the critical lack of access to justice crisis. But, doing so may only mean consigning many people to second-rate or inadequate service. There’s a place for paralegals, but it cannot come at the expense of lawyers struggling to stay afloat (by robbing them of clients) or at the expense of people who aren’t getting the level of legal advice they need.

FOLA asks: Thoughts on Funding Staffed Local Law Libraries

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Staffed local law libraries continue to be indispensable resources, and they consequently need to be properly funded.

Other topics

Candidate contributions on additional topics

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Members should be refereed to as “members,” not as “licensees.” Referring to us as “licensees” is one small (but all too typical) indication of the Law Society’s current corporate culture of coldly bureaucratic aloofness. Changing the term back to “members” would be an outward, symbolic sign that the Society is reinventing itself with a view to taking on a humane, collegial face.

Although it is a minor matter, why not consider replacing the archaic terminology currently employed by the Law Society through its use of titles like “Treasurer,” “Bencher,” and “Convocation,” with something more appropriate for the 21st century – something like “Chairman,” “Representative,” and “Governing Council?” Likewise, members should have been asked (by means of a binding referendum) whether they preferred “Ontario” or “Upper Canada” as part of the organization’s name.

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In an effort to involve members in their own governance, Law Society policy changes that affect members should henceforth ordinarily be put to members in the form of referenda, the result of which should be binding on the Society.

To further the same objective, a new term limit should restrict any member from serving as a Bencher for more than two terms over the course of their career.

Other topics

Candidate contributions on additional topics

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With respect to legal aid, there is room for a diverse array of service delivery platforms, encompassing legal clinics, duty counsel, the Family Law Info Center, and lawyers hired on certificates. But, the system is critically hobbled by inadequate funding. Practitioners say that LAO falsely tells clients that there are no limits on the billable hours allocated for their cases, when in fact there are. Practitioners say that the system and its inadequate funding create implicit pressures on lawyers to induce their clients to settle. They say that most lawyers turn down certificate work in complex cases. They say that the LAO is arbitrary and sharp in its communications with lawyers. They say that LAO’s tariffs do not allocate hours for ‘motions’ in cases like domestic abuse, in which protection motions may be needed. They say that the Law Society, for its part, is allocating ever more work in family law to paralegals, displacing lawyers, and reducing the caliber of the legal service provided to clients. They say that the Family Responsibility Office (FRO) fails miserably to enforce support orders. These allegations suggest that there are serious systemic problems with LAO and with access to justice, especially impacting on those with low to middle incomes.

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