When public interest work isn’t very public

What are the issues occupying Law Societies’ Boards of Directors these days? I thought finding them would be a relatively straight forward search, assuming all would make their meeting materials, or at least a summary of their deliberations, publicly available. In that way any interested lawyer or other observer could see what the legal regulators are up to. For bodies that work in the public interest, that would be the obvious way to keep the public and the profession abreast of what is important and what law societies are doing.
With some disappointment, but not much surprize, I discovered that making board materials public is the exception, not the rule.
In remarks made as part of the 2017 Pitblado Lectures in Winnipeg, I noted about how difficult it is to discover what law societies do –
Law societies that purport to have the public interest as their primary mandate must be much more open and transparent about what they do. A cursory examination of law society websites shows how opaque they are and how the public cannot fathom what is done and, more important, how law societies make decisions. They mostly communicate about bad things, i.e., discipline, and rarely speak about – let alone make readily accessible – the many positive things they do. But openness is about more than communication. It is about being very clear regarding law societies processes, their policies, the decision-making matrices and their agendas. It also requires that law societies report to the public on what they do, how they do it and how they could do it better
In those remarks I was referring to the broad work of the societies. The observation remains true today. Now my interest is what are their policy priorities and how Benchers or Councils advance their strategic priorities. Because ‘governance hygiene’ should be a priority, I also wonder to what extent boards descend into operational work.
I found:
– Only four law societies publish their board materials in conjunction with their meetings – British Columbia, Ontario, New Brunswick and Nova Scotia.
– Three others – Alberta, Saskatchewan and the Barreau de Quebec – publish agendas before meetings.
– Northwest Territories publishes agenda and minutes, sometime after they are approved (most recent are from November 2017)
– The actual work decisions and discussions at the Board are reflected in minutes publicly available from those who publish their materials and Alberta.
– In Alberta board materials are available upon request;
– Manitoba and Saskatchewan intend to make their materials available when some technical and resource issues are resolved.
Making board of director agendas, materials and minutes available is about an organization’s transparency. As Glenn Tecker of Tecker International has advised in his work with law societies , transparency is about trust. If an organization expects those affected by its work to trust the results of their processes and decision making, it is vital those processes and decisions be transparent, i.e. open and available. That is not a novel idea.
There is a large body of literature on why transparency is essential for governments to build and maintain public trust. Though there is much debate about disclosure of work done within the bureaucracies, there is no doubt legislative and public policy formulation of governments must be done in the public domain. Failure to do so results in authoritarianism. Would any law society argue for something other than open government?
There is also much written on the importance of openness in business, especially if the business relies on the trust of the pubic to advance mission. An article in the Harvard Business Review said this in 2012:
The truth is that transparency is something that a company mostly controls and that mostly reassures its customers. By giving people a window into its workings, a company can show it has a sound process that it’s adhering to. It can avoid asking customers to have faith in a black box. The greater the transparency, in other words, the greater the trust.
The very same can be said of public interest regulators. Law societies should be concerned about the trust of stakeholders, such as regulated lawyers, the public, governments and justice sector institutions. Yet so many of them continue to work behind closed doors, away from lawyer scrutiny and free from enquiries of the forth and fifth estates, frequently the public’s eyes into process and decision making.
Making materials available that are directed to helping decision makers do their work should be a no-brainer. It will make those materials better because they will be more broadly read; both staff and committees will have to up their game; it will improve the quality of decision making because board members will be better informed; and it will lead to greater trust for the work of regulators (just as opening formal discipline hearings did 20 years ago). There is no down side and when it happens, I will then be able to easily discover what is happening at the law societies.

Post script – lest readers think that law societies are the only regulators who do not publicly disclose their boards’ work, my understanding is the majority of law societies fall in with the vast majority of professional regulators. They almost all govern in secret. In the health field the government of Ontario’s answer to this was to legislate openness when they amended the Procedural Code under the Regulated Health Professions Act to require the following:
7 (1) The meetings of the Council shall be open to the public and reasonable notice shall be given to the members of the College, to the Minister, and to the public. 2007, c. 10, Sched. M, s. 20 (1).
Posting of meeting information
(1.1) The College shall post on its website information regarding upcoming meetings of the Council, including the dates of those meetings, matters to be discussed at those meetings, and information and documentation that will be provided to members of the Council for the purpose of those meetings. 2017, c. 11, Sched. 5, s. 8.
Items where public excluded
(1.2) If the Registrar anticipates that the Council will exclude the public from any meeting or part of a meeting under subsection (2), the grounds for doing so shall be noted in the information posted under subsection (1.1) and information and documentation related to that meeting or part of that meeting shall not be posted under subsection (1.1). 2017, c. 11, Sched. 5, s. 8.

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