‘King’s Counsel’ titles may violate rules on misleading ads, experts caution

The head of Ontario’s legal regulator declined the government’s offer of a King’s Counsel designation due to the lack of selection criteria, she told the Star, as experts warn that using the title may violate professional conduct rules for lawyers.

Had Law Society of Ontario treasurer Jacqueline Horvat accepted the KC offer, she would have “risked giving credibility to a suspect government initiative,” said University of Ottawa law professor Amy Salyzyn, who specializes in legal ethics.

The Ford government has been staring down a patronage scandal for reviving the special title for lawyers last month and handing it out to numerous Tory politicians, staffers and loyalists. No public call for nominations, selection criteria, or information about the appointment process was made public prior to the announcement that 91 lawyers had received the designation.

The title carries no special privileges aside from allowing lawyers to put the initials “KC” next to their name and wear silk robes to court.

However, questions have been raised about whether recent recipients would be in breach of the Law Society’s rules of professional conduct around advertising, should they decide to market themselves as a KC.

Those rules caution against marketing awards, rankings and third-party endorsements that could be misleading to the public, including those that “do not genuinely reflect the performance of the lawyer and the quality of services provided by the lawyer but appear to do so,” and “are not the result of a reasonable evaluative process.”

Former Law Society treasurer Gavin MacKenzie told the Star that the recent batch of KC recipients, “with a few exceptions,” could fail to meet that criteria. He said it is “evident” that the list of recipients was largely based on party loyalty and not merit, and he also pointed to the lack of a public appointment process.

“I expect it would be difficult for most recipients of these KCs to demonstrate that advertising the honour is compliant with the Law Society rules,” he wrote in an email.

“The practice should just stop now,” MacKenzie said. “It should remain dead and buried. It is misleading to the public.”

The Ontario government stopped handing out the title in 1985 — when it was known as Queen’s Counsel — under the newly-formed Liberal government of David Peterson, who said the designation had become “corrupted.”

Attorney General Doug Downey decided to revive the title last month to mark King Charles’s coronation and recognize lawyers for legal excellence and service to their communities. His office said he heard “from many individuals and stakeholders in the Ontario legal community” about bringing the designation back, and that there will be a public application process going forward.

Several major legal organizations — including the Law Society — told the Star they were not consulted.

“Having established criteria for honorariums and designations for professionals is a best practice that supports the public understanding of a credential,” said Horvat, who serves as the elected head of the Law Society’s board of directors, in a statement to the Star.

“I declined this designation based primarily on considerations around the lack of established criteria for the designation and the absence of a consultation process on the need to resurrect such a credential.”

The Law Society is mandated to regulate the legal profession in the public interest. Its duties include managing the bar exam, issuing licences and disciplining lawyers and paralegals for professional misconduct.

Salyzyn said it was both understandable and “prudent” of Horvat not to accept the title.

“This designation is said to be recognizing ‘legal excellence,’ but without established criteria and an independent evaluation process, it risks being awarded on grounds other than legal excellence and, indeed, in this instance appears to have been politicized,” she wrote in an email.

Two of the Law Society’s board members — Sidney Troister and Jennifer Gold — were included on last month’s list of KC recipients.

Further controversy around the KC title erupted after the Star reported that Transportation Minister Caroline Mulroney was called to the Ontario bar just three days before the government announced she was getting a designation. Mulroney, who had only ever held a law licence from New York, was able to bypass all Law Society licensing requirements as a former attorney general of Ontario, thanks to an amendment made to the Barristers Act by the Ford government in 2021. The Star also found that more than a dozen KC recipients donated to Downey’s campaign or riding association.

Premier Doug Ford — whose long-time lawyer received a KC — has tried to distance himself from the controversy by telling reporters last week that he didn’t see or approve the list of recipients.

The Law Society refused to answer the Star’s questions as to whether it had any concerns that marketing the designation might violate the rules on misleading advertising.

“It is not clear to me whether lawyers can, when marketing themselves, refer to a KC awarded under this opaque and seemingly politicized process and always still be in compliance with these rules,” Salyzyn said.

Another former treasurer, Thomas Conway, argued in an email to the Star that “it would be a real stretch” to say this would violate the rules.

“Given the controversial history of this tradition in Ontario, I am not the least bit surprised that the announcements have been controversial,” he wrote. “It’s too bad, it was an opportunity to bring some lustre back to an old tradition, but I’m afraid the government really blew this one.”

‘I didn’t see a list’

As the government continues to face patronage accusations, Ford told reporters last week that he didn’t see or approve any list of recipients, while expressing confidence in Downey.

The 91 recipients received their KC through an order-in-council dated June 29. Those documents are routinely approved by cabinet and become official with the signature of the lieutenant-governor. The order-in-council appointing KCs also includes the signatures of Downey and chair of cabinet Vic Fedeli.

Ford’s office refused to say whether he was at the cabinet table when that order-in-council was approved, when he first learned the designation was being revived, whether he asked for anyone to be included on the list or was consulted about any recipients. A spokesperson simply reiterated “this isn’t a priority for him.”

Orders-in-council cover a wide range of issues, and given the large volume of them at cabinet meetings, it’s logical to assume that some are approved with little or no discussion, while others are separated for more careful deliberation, said political science professor Jonathan Malloy, chair in Canadian parliamentary democracy at Carleton University.

“It is clear that the apparent silence of the premier’s office suggests that the premier is distancing himself from what has become a contentious and politically embarrassing issue,” Malloy said.

“My interpretation is that this was not expected to turn into such a contentious issue, and so it was not reviewed, discussed, and approved with sufficient attention to the potential political fallout.”

NDP Leader Marit Stiles said in a statement Ford was passing the buck. “Either he doesn’t know what’s going on in his own cabinet, or he’s directly or indirectly given his blessing to this return to a patronage, pay-to-play culture at Queen’s Park,” she said.

Interim Liberal Leader John Fraser said nothing is approved by cabinet without the knowledge of the Premier’s office.

“The Premier can’t ‘aww shucks folks I didn’t know’ out of this one,” Fraser said in a statement.


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