Law Society of Ontario creates new policy on posthumous calls to the bar
Jamal Akim Howlader, a 2020 JD graduate from the University of Toronto Faculty of Law, will be posthumously called to the Ontario bar later this year.
Besides the honorary calls to the bar made in 2014 for the 60 Ontario law students who died in the First World War, this marks the first time in over 200 years of operating that the Law Society of Ontario (LSO) permitted posthumous calls to the bar for an individual.
Howlader passed away suddenly on November 5, 2020. Prior to his passing, he successfully passed the licensing examinations and was an articling student at Rotfleisch and Samulovitch P.C. Friends described him as incredibly humble, smart, and above all, kind.
In addition to organizing the fundraiser to create the Jamal Howlader Bursary at the University of Toronto Faculty of Law, Howlader’s family and friends, including his childhood friend Denna Pourmonazah Jalili (4L JD/MBA), successfully advocated to the LSO to call Howlader to the Bar of Ontario. In doing so, they pushed the LSO to create a policy regarding posthumous calls to the bar.
Initial Pushback
The process to create this change took over four months and multiple exchanges between the LSO and Howlader’s family and friends. Jalili first contacted the LSO at the request of Howlader’s mother on the day of Howlader’s funeral. Nearly three weeks later, and after multiple follow-ups, the LSO rejected Howlader’s friends and family’s request.
The rejection stated that there was nothing in the LSO’s By-Laws to permit posthumous calls to the bar. But Howlader’s family was undeterred, requesting the LSO review their decision. After two months of silence, they received another rejection.
They didn’t stop there. While Jalili noted the second rejection was convincing at first glance, Howlader’s mother felt it was discriminatory. The letter stated that By-Law 4 on licensing does not permit posthumous calls to the bar if the eligibility requirement is not met. The letter described the posthumous call to the bar for the World War I soldiers as a “single and unprecedented event.”
“It’s contradictory. On one hand, they said they couldn’t circumvent By-Laws but on the other hand, there are 60 examples of exceptions to this rule that doesn’t even exist,” said Jalili.
With the support of Howlader’s family and friends, Jalili penned a letter to the LSO’s Executive Director of Professional Development & Competence, Priya Bhatia. They argued that the current By-Laws were ill-suited to deal with cases such as Howlader’s, for whom qualification was not a serious concern, and for whom certification would have been virtually guaranteed but for his untimely passing. By-Law 4 stipulated certain exemptions to the articling requirements, but did not mention the ones listed were the only exceptions available.
“To assess the merits of posthumous call through the lens of By-Laws that don’t even contemplate the premature death of an applicant doesn’t make any sense,” said Jalili.
Arguments for a Policy Change
Instead, Howlader’s family and friends argued that the Law Society has the discretion to call candidates to the bar posthumously, and if there was ever an appropriate time to exercise it, it would be now. They argued that the commemorative event to posthumously call the soldiers to the bar provided evidence that such discretion exists, either derived implicitly from By-Law 4 or from the broader discretionary power of the LSO.
Bhatia responded within a week, requesting a meeting to discuss their request. During the meeting, she explained how their request was not the first of its kind. Among many, there was a woman who fully completed her articling requirement but passed away prior to her ceremony. Even though she discharged all the requirements, the LSO denied her posthumous call to the bar.
As Jalili recalled, the LSO was hesitant to allow posthumous calls to the bar since candidates could not swear or affirm the oath required to practice law in Ontario. Jalili didn’t view this as an impediment; the oath requirement didn’t prevent the soldiers from being posthumously called to the bar. Moreover, if the main purpose of the oath is to hold lawyers accountable for their actions while practicing, that is not a concern for deceased candidates.
There was also concern on how a posthumous policy for calls to the bar would be implemented. Do students have to complete their full articling requirement? 75 percent? 50 percent?
“The line should be drawn based on the logic that is underpinning the various requirements to be licensed,” remarked Jalili. As he explained, once a student finishes their schooling and passes the bar exam, they have proven they have a “mastery of intellectual requirements.” Articling, Jalili argued, has a “self-contained, developmental purpose.” If a student has proven themselves academically worthy, demonstrated competence, but for no fault of their own, couldn’t complete their training requirement, they should still be called to the bar.
Moving Forward
On March 23, Howlader’s family and friends received the news that not only will Jamal Howlader be called to the bar, but that the LSO created a new policy regarding posthumous calls to the bar.
Howlader’s friends and family were impressed by how well Bhatia approached the situation and pushed for change within the LSO. “She handled it with grace, without misleading us, and seemed like she genuinely cared,” said Jalili.
At the time of publication, Jalili has not received details on the new policy nor has the LSO publicized this policy on their site. Ultra Vires reached out to the LSO for a comment but they did not respond at the time of publication.
Jalili admires Howlader’s mother’s unwavering perseverance. After finding out that other families were denied the same request, she was driven to ensure that Howlader’s posthumous call to the bar doesn’t become the exception to the rule but the rule itself. “Jamal had a rich sense of right and wrong, a strong sense of justice. I can see where he got it from,” said Jalili.
The call to the bar ceremony is considered very meaningful and symbolic, not only to the candidates but to their close friends and families. As former Chief Justice Warren K. Winkler said in his June 2013 remarks to new calls, “your call to the Bar is a defining, proud and pivotal moment. It calls for celebration, excitement, and relief.”
The LSO’s new policy for posthumous calls to the bar will hopefully bring grieving families and friends some small comfort as they continue to honour their loved ones.
