Orlando Da Silva, LSM

Lawyer Candidate – Toronto Region

Priorities

See comments to individual issues

Background

Having worked 11 years in the private sector and another 13 years in the public sector (in both civil litigation and criminal prosecutions), and as a Past President of the Ontario Bar Association, I will, with the benefit of many perspectives, exercise a strong voice at Convocation. These perspectives are enhanced by my personal background, lived experience, and culture. Combined, they have taught me the importance of improving equality, diversity, and inclusion in the justice system for all legal professionals, including those with invisible challenges. I will “lean in” to this cause as a first generation Canadian, the first in my family to attend university, and as a strong advocate for mental wellness in the law.

Enjoy this candidate’s “Of Counsel” interview while you read more about them!

Candidates I support

There are so many good candidates running in the 2019 Bencher election. Among those I know, most would make excellent Benchers. In this election cycle, I am more inclined to offer my support to fresh faces, younger and diverse candidates, and those who come to Convocation without fully formed and immutable positions on every issue canvassed during the election. It is still important to be willing to listen and learn. The LSO consults for a reason and its Convocation debates for a reason. While there are many candidates that I support, in order to provide a meaningful response to this question, I would like to give special mention to:

Outside Toronto:

Jacqueline Horvat

Quinn Ross

Cheryl Siran

Rebecca Bromwich

Inside Toronto:

Rebecca Durcan

William McDowell

Isfahan Merali & Jayshree Goswani

Atrisha Lewis

Something the LSO does that it should stop doing

The LSO should not regulate in all areas of legal service simply because it can. Mission creep is something the LSO needs to acknowledge. In some, perhaps many areas of legal professional endeavour, it should merely insist on professional competence knowing that most lawyers want to (and are deeply motivated to) provide excellent legal service to their clients, directly, or through the professionals and other staff they supervise. Indeed, their livelihood depends on it. Incompetence can be dealt with through other processes and consequences. Having said that, it is important for the LSO to keep abreast of the changing nature of the practice of law including, in particular, the way it will be (and is being) shaped by current and emerging technologies. I see this as a different function, however, from regulating the use of emerging technologies particularly before their wide spread understanding or adoption

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

Consult better. Decide quicker. And regulate only where necessary and always in the public interest.

website

https://www.orlandodasilva.net/

email

ovdasilva@icloud.com

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

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Access to justice is a problem we all recognize but can’t seem to adequately resolve. It is tempting, but wrong, to place the burden of ATJ disproportionately on lawyers (who already give generously by donating much time at no, or little cost, to their clients). Nor should the LSO be pressured into simplistic solutions by, for example, expanding the scope of paralegal practice into areas where they may not be truly competent, or which crowds out competent counsel, especially in smaller population centres, where the services are otherwise provided. The LSO should partner with other willing justice sector participants to (a) ensure stable funding for ProBono Ontario; (b) foster simple, intuitive, and on-line civil procedures (especially in family law); (c) allow for competent unbundling of legal services; and (d) encourage Legal Aid Ontario to streamline its vetting and bureaucratic processes to ensure a greater percentage of their funding sources are applied to legal services.

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I would like to modernize and simplify the LSO governance structure, allowing the LSO to accomplish more, quicker, and with less expense. If done properly, without sacrificing adequate representation, the LSO will make better decisions and implement them faster while lowering costs and reducing fees.
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When I attended U of T law school, the tuition was approximately $2000. Now, I understand it is approaching (or about to exceed $40,000) per annum. I believe this is too high and imposes avoidable stress and mental health issues on its student body. I don’t believe the LSO has jurisdiction to regulate tuition fees. What it can do, however, is partner with willing law schools to create incentives for law schools to provide transition training to its students. If done properly, this transition training could stand in the place of articling or LPP enrollment allowing the law students to write the barrister and solicitor exams immediately after law school and, thereby, forgo the expense (or opportunity cost) of articling or participating in the LPP program. Participating schools should be allowed to offer this option to its students only if it is prepared to commit to lowering its tuition fees to manageable levels.
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I support the statement of principles, as far as it goes. As a tool, it compels lawyers to think about the issues facing racialized lawyers specifically, and about diversity and inclusion more generally. I doubt, however, that the statement alone will change entrenched and old-school legal culture. For that, we have to wait for students and young lawyers to move up the ranks of the legal profession. It will happen. They will change the culture of the profession, for the better. But it will take time.

Artificial Intelligence in Legal Service Delivery

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AI may be the way of the future in legal services, or maybe not. In either case, legal professionals should be free to explore whether AI can assist them in providing better legal services to more clients at lower cost. Until AI is “proven” and widely adopted in the legal profession, it is premature for the LSO regulate its use. The LSO should, in other words, maintain a “watch brief” with respect to the use of AI technologies in the law and resist the urge to impose regulations before it gains understanding. In other words, the LSO should keep abreast of new and developing technologies, understand their pros and cons, together with their ability to reduce the cost of legal services, and insist that lawyers who adopt AI and other technologies (as well as those they supervise) must be competent in their use. Lack of competence, resulting in harm to the public or the profession, will typically attract consequences through rules and regulations that already exist.
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Subject to the views I expressed elsewhere in this questionnaire, I support the decision of Convocation to maintain the status quo (with the enhancements proposed).
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Unbundled legal services is one way to increase access to justice. I support a continuing dialogue and debate on how to do this without sacrificing legal competence or resorting to the over-reach of paralegal services beyond their level of competence. I think we must acknowledge that, with respect to ATJ and legal competence, unbundled legal services, is not the ideal solution, but it may be a workable one. More discussion is required.

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Experience in other jurisdictions, most significantly in New South Wales, demonstrates that entity regulation coupled with alternative business structures dramatically reduces complaints against lawyers for incompetence and misconduct. I think there is room in Ontario to explore, with proper controls, entity regulation, on an opt-in basis, and as a pilot project, where select entities would voluntarily agree to LSO regulation, in exchange for the LSO allowing the entity to regulate its own members using the same scheme and rules the LSO would, otherwise, use to regulate its individual members. In other words, the LSO would, on a pilot and volunteer basis, delegate its regulatory authority to the entity in order to determine whether the public would be better protected through entity regulation, than by simply regulating the members of the entity, as appears to be the case in New South Wales.
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Lawyers should be encouraged to use technology in order to deliver better services more cost effectively. They should not be compelled to use new technologies, however, especially where, given their age and stage, such compulsion would impair their ability to provide competent legal advice or services. Rather, they should be encouraged to learn the capabilities of new technologies and to apply them where they can (having regard to the means and needs of their clients). In short, this is a matter for CPD credits rather than lawyer regulation.

Reconciliation and Indigenous Communities

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We must recognize that the LSO, as an institution, is part of a larger societal obligation to promote reconciliation with Indigenous communities across Ontario. I would like to see the LSO continue the work commenced, most visibly, by former Treasurer Janet Minor, and continue its outreach to Indigenous Communities across the province to remind them that the Law Society of Ontario, is their society too.

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Despite the debate prior to the 2015 Bencher election, I believe there is still room to consider alternative business structures in Ontario. Rather than rejecting ABS out of hand, I think they should be considered with entity based regulation as a means to reduce complaints against lawyers, but also as a means of increasing access to justice. I can see a successful ABS model where non-lawyer managers of lawyers and their practices are (a) educated on the lawyers’ duty of good faith, confidentiality, fidelity, competence, and privilege ) and (b) are compelled to ensure these duties are prioritized and upheld. If they fail to do so, the LSO should be empowered to revoke their ABS license.
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Subject to the views of lawyers and law firms who occupy this space, together with their clients (or potential clients), I would not alter the status quo.

Specific Enhancements to Licensing System

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The LSO should consider surrendering some CPD market share to volunteer associations in order to allow them to offer greater value to their members and to become stronger advocates for the issues affecting lawyers and paralegals. The LSO should not be their advocate, given its public interest mandate, and recognizing that the LSO enjoys the great, but revocable, privilege of self-regulation. Accordingly, the role of advocate for the legal professions should be surrendered in favour of voluntary associations. Unfortunately, these associations are experiencing declining membership. The LSO must support them indirectly, by allowing them to provide more accredited CPD, without competition from the LSO, so they may increase their membership and become stronger advocates for their interests.
Expand to read Orlando's views
Expand to read Orlando's views

As mentioned above, if elected Bencher, I will encourage the Law Society of Ontario, Convocation, and all willing justice sector participants, to forge partnerships committed to improving the mental health of the legal profession, including lawyers, students, and paralegals. The LSO is also well suited, through strategic partnerships, to address the mental health of the broader justice community, including, judges, prosecutors, first responders, jurors, self-represented litigants, and vulnerable members of society engaged in the justice system. With your support, I will be a strong advocate for this process and these partnerships.

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The LSO has become the subject of legitimate criticism that its fees are too high and that it has fallen victim to “mission creep” by exceeding the limits of its mandate. In the normal course of its budget process, there should be a line-by-line review of its expenditures with a few to eliminating unnecessary and duplicative costs. This should, and probably is, done as a matter of course. In addition, each expense should be considered in light of whether it advances the LSO’s core mandate. For example, the LSO should not spend funds on advocacy initiatives, where those initiatives are, or could be seen, to,merely advance the interests of lawyers, rather than the public they serve. Apart from advocacy, I wonder about the utility of continuing to fund libraries, where most research has moved to digital resources. If nothing else, this is worthy of debate.

Diversity and Inclusivity Priorities

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As mentioned above, if elected, I will bring many perspectives to Convocation. These perspectives are enhanced by my personal background, lived experience, and culture. Combined, they have taught me the importance of improving equality, diversity, and inclusion in the justice system for all legal professionals, including those with invisible challenges. I will “lean in” to this cause as a first generation Canadian, the first in my family to attend university, and as a strong advocate for mental wellness in the law. In short, I support the LSO taking steps to increase diversity and inclusion at Convocation, in the legal profession, and throughout the justice system, whether alone, or in partnership with willing justice sector participants.

Scope of practice for paralegals and non-licensees

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FOLA asks: Thoughts on Funding Staffed Local Law Libraries

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Other topics

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