One thing that attracted me to my current role was to be able to work with a governance board again. A proper one. Every board has its own personality and I’m already learning the differences between this board and the one that I worked with in Hamilton County, Ohio, which was positive but different. The relationship between the law library director and the governing unit is like any relationship, even though the overall framework of governance is universal. Or it should be. As my board and I get to know each other, I’m reflecting on the Law Society of Ontario’s board governance problems which provide extensive examples of how hard it can be to get this right.
In fact, I’m not sure you could get it more wrong than Ontario’s lawyer regulator. And so that makes it a learning exercise as well as a cautionary tale. The law library at the Law Society and the delivery of legal information across the province was damaged because of this poor governance. Some of the issues were built into the system and magnified by environmental issues. Others seem like they’re not uncommon in boards that have lost their way.
How Many Seats at the Table
The size of the governance board matters. It should be big enough to ensure that there are useful perspectives and skills brought to the table. But it shouldn’t be so large as to be unwieldy. My current board is 9. I’ve worked with boards of 8 and 12 as well. 12 seems like a good ceiling – it’s enough to ensure you get participation, particularly if your board is struggling to get quorum for meetings but not so large as to be unwieldy.
It’s a dumb analogy but Jeff Bezo’s two-pizza meeting rule isn’t an awful guideline for board size. This is an interesting look at the alchemy of teams and how you want enough diversity in perspectives and skills without too many people. More isn’t always better.
The Law Society’s governance board (“Convocation”) has 45 lawyers and paralegals as well as former chairs and politicians. Another organization that follows this approach is the American Bar Association, whose Board of Governors has 43 members, including ex-officio officers. In contrast, the State Bar of California, a regulator like the Law Society, has 13 members on its board.
The disparity in numbers is important. I recently participated in a board retreat (not with my governance board) and we discussed the difference in types of boards. Some are operational and some are prestige-oriented. It depends on the board’s purpose. The latter will include people who are not expected to contribute to the work so much as to leverage their position, title, or personal network to further the governed organization’s mission. I suppose you can have a large board if some of them are not contributing anything more than their name, since that may not impact decision-making if they’re not actively engaged at that level.
The law library boards I’ve worked with or know about are not prestige boards. The boards are present as advisors, and possibly do work, but they’re not their for their prestige even if some of them have that additional benefit. Their staff do not ensure their continued existence; they exist in addition to the staff they hire. I don’t mean to put down prestige. I think it could enable a law library board to amplify its influence out beyond the legal community. It’s just not something that I’ve found to be common in law libraries.
The 2018 State of Law Firm Leadership report from Thomson Reuters found that elected law firm management committees ranged from 5 to 30, averaging about 10. I wonder if anyone asks this question when hiring a law firm – I would have worries about that 30-lawyer management committee and the firm’s effectiveness, on its face.
The Law Society’s board size issue manifests itself just as you might expect when you get 45+ lawyers in a room and ask them a difficult question. Everyone wants to express their opinion, informed or not, and there’s substantial wastage of time and effort. The board ran at least two operational reviews during my time and both were ineffective because, in the end, the board couldn’t make hard decisions about what to keep and what to cut. So no rational decisions and outcomes occurred.
The board is viewed externally as ineffectual. One meeting that I watched online showed the contempt, as another remote participant typed “laughing for (grades)” as board members responded to each other. I was embarrassed for the board – and our staff – but also couldn’t disagree. Their deliberations are like watching a bad sitcom.
I do not work in a commercial environment but the law firm data gives me confidence that our legislatively-created board is probably the right size. If you work in an environment with a governance board that needs to be re-sized, it can be tricky if the size is mandated by legislature or other government entity.
Law firms are likely to remodel themselves for commercial reasons or forego boards or committees due to the benefits of nimbleness. I expect their executive succession and replacement is more ruthless than most boards. Law school libraries may be subject to a board of regents or other external group that has a broader mandate than just the law school. However, there is plenty of evidence to support smaller boards.
Who Sits In Them
Once you have the seats, it matters who sits in them. In the ideal world, you populate the board with people who have skills that can assist the board’s employee – the CEO or, in my case, law library director – to fulfill the organization’s mandate. The way the board is selected matters. The skills that a board member brings should determine their participation.
One would think a regulator would have a governance board mostly focused on governing the regulator. The Law Society’s board resembles a guild board like the American Bar Associations and, whether causally or not, it acts like a guild board and not a regulatory one. Directors regularly position themselves as representatives of external constituencies, rather than board representatives and, thus, organizational representatives.
Legislated boards have very specific requirements for representational reasons. Most courthouse law libraries that I’ve looked at have at least some requirement that the board members come from the local bench or bar. The Law Society and the State Bar of California have a mixture of lawyers and others. The ABA is all lawyers, which is unsurprising for a lawyer professional association, but has regional requirements so that it represents its geographically distributed constituency.
The limitation of boards to people who have been to law school is a significant threat to governance. In my educational and work experience, lawyers are no more knowledgeable about boards, board roles, fiduciary obligations to organizations, and governance than the average person on the street. Anyone working with a lawyer-only board is going to need to use whatever tools available to dig for skills-based members. It shifts a huge potential burden onto the staff, who may not have the qualifications to meet it.
In the case of our board, there was particular effort given to bring in a board member with financial acumen, for example. Like many courthouse law libraries, we also have long-serving members, which results in experience, or people from political roles who have greater exposure to governance. I’d say we’re fortunate but I know that this sort of composition takes effort to create.
I want to return to the word constituency which can sometimes overlap with another, stakeholder. These terms can trip up a governance board. The Law Society of Ontario certainly trips over it. When you have an elected board, it can take on the aspects of a representational election. In Ontario, that has led to substantial poisoning of the governance board by directors who see themselves as representing lawyer constituencies instead of as representing the organization.
Inevitably, representational board elections will lead to concerns about voter apathy just as other elections face. This is hardly a surprise when your governance board is elected from a population rather than selected based on skills. It’s looking at the wrong problem, though. It’s not the election, it’s the candidates for the board positions. 100% electorate participation would still leave an unskilled, dysfunctional, poorly led board, it would just legitimize their incompetence.
The difficulty with using a skills-agnostic constituency and stakeholder selection as a way to populate a board is that (a) it assumes the organization has all of the skills it needs and (b) that the board members have some inherent understanding of governance. It also complicates the ability to make a board more diverse in ways that go beyond skills. In a profession like law, where diversity continues to lag (like the law librarian pipeline) this makes an election-based, non-selective board likely to amplify the lack of diversity.
This lack of skills is easier to remedy than the number of seats. It just requires the will of the board to fix itself. Based on my interactions with the low quality Law Society of Ontario board members and their aspirants, it requires a selflessness that they lack as it would unseat most if not all of them.
But it’s possible. In 2009, I participated in the revision of the Canadian Legal Information Institute’s governance board from a representational group to a skills-based one. The Law Society’s current CEO led this initiative and there was a matrix of skills that were sought out for board members:
- previous board experience
- interpersonal skills that will enable collaboration with other board members and staff
- demographic representation
- skills: governance law, audit and finance, marketing and PR, technology, development, human resources, etc.
If you look at the current CanLII board composition, they bring a ton of different perspectives. Are they effective? I have no idea but I think the board selection matrix has continued to bring in a variety of outlooks.
You may or may not know that perhaps the primary function of a board is to hire their executive staff person. That’s it. And that person will hopefully come with a lot of the experience – with HR, finance, communications, IT – that a board member would also need. But they won’t come with all of it. So a skills-based board can complement the executive officer and do what they’re supposed to: provide guidance and alternative perspectives for the executive to leverage in line with their own experience.
On its face, this would seem to be an easy fix. It’s not. It requires an executive who sees the issue and can raise it. It requires a board whose sees itself clearly and remembers its fiduciary responsibility to the organization. The reality is that even the Law Society of Ontario could fix this problem if it wanted. 45 board members is an egregiously large number, but there are probably 45 better candidates that can be selected based on skills rather than populating the board with 45 random people.
Ontario’s situation is complicated in that their board is seen as a springboard to a judicial seat. So participation isn’t necessarily a reflection of care for the regulator so much as a concern for one’s post-practice future. Unlike the US, all Canadian courts are appointed and you can imagine the regulator’s role can impact the appointments. This may lead to abuse, as someone suggested that one particular politically troublesome lawyer be put forward for a judicial appointment just to get them out of the way. It’s like a pipeline of the least and dimmest.
Who Leads Them
It is impossible to underscore enough that leadership is key. You can have the best executive officer available but if your board leadership is missing, your organization is going to struggle. Your executive may be able to paper over those struggles with a good CEO but the organization will not be running optimally.
Of the three areas – how many, who, and who leads – leadership is probably the easiest change to make. You may be locked by legislation or other concerns into how many and what professional education they require. But a board chair is almost always chosen from a pool, and can be moved back into that pool if they’re ineffective.
It bears noting that the current Law Society of Ontario CEO is the best one I experienced; I don’t think that’s where the leadership problem lies. I worked there under 3 CEOs and 8 board chairs (“Treasurer”), some of the latter who were so focused on their personal post-board legacy that their egos wasted substantial operational resources while also failing to lead their board. But any executive officer would require a strong board chair and a professional board to enact change. You can’t build a house out of wishes.
The board chair selection isn’t any different from a skills-based matrix for board members. The difference is that they should know how to be a chair and how to lead. These are rare skills and your organization takes a huge risk by hoping that, from a board pulled from a random set of non-vetted candidates, there will be someone with those particular skills. In the Law Society’s case, there was likely only one person with those skills during my 15 years and even that person was ineffective.
It doesn’t help that the Law Society’s chair changes every one to two years. If there’s any governance role that might benefit from longevity, it would be the chair. However, if your governance is based on a representative model, the Board is going to have to be aware it needs to rely on staff for expertise.
The chair is key to a successful board-led organization. If they can’t run the board, it will impact hiring the executive. It will impact decisions fundamental to the organization’s mission and future success. It will impair the board from working together to support the executive officer or each other. It will create risk for the entire organization, because things will be missed that might blindside the board or the organization. It will open the executive to having the board members attempt to run operations.
There’s an alchemy to the board chair that probably can only be managed with experience. I’ve seen board chairs focus on operations, which are not their purview, because they are either over-confident (or lacking in confidence) about their own skills. Alternatively, that lack of confidence can lead to other board members fracturing the board’s work. It’s a management role, even if it doesn’t look like it.
This has real consequences. I participated in a board with a weak chair and a particular activist board member. It created huge friction for the board and eventually caused one of our most skilled members to quit. If people are volunteering for or believe in the organization’s cause, the board needs to work properly. And that’s the chair’s responsibility.
Another board I’ve worked with had a board chair with energy but not management skills. The board didn’t act because no-one ever asked them to, then followed up to ensure they had, and moved the board’s agenda forward. These are Management 101 issues but, again, when you pull from the legal profession, you’re taking pot luck on the candidates having ever had any management experience.
I have not had this experience with my governance boards but it’s something law library directors should watch for. If you are spending a lot of time doing the board chair’s job – running committee meetings, creating work for the board – then the board isn’t working correctly. The executive should be running the operations, the board chair should be running the board. The board should fire you if you aren’t successful at running the operations, and the board should fire the chair if they’re not effective too.
The thing that is perhaps the most surprising to me is how widespread board governance is and how widespread bad boards are. You’d think that something so well researched and so well documented would result in better governors. But I suppose people don’t follow science when it comes to viruses so it’s hardly surprising when it makes them feel as though they’re not the right person for a job. I’m enjoying being back in contact with a board and I’m hoping to grow my own board-related, governance-related skills.