Systemic Discrimination in Law Firms: Perception or Reality? My Point of View

According to the Canadian Charter of Rights and Freedoms (Section 15 (1)):

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Of course, and unfortunately, this is not always the case in practice. Many people continue to deny others equal treatment, intentionally and not. Law Times offers a recent example of alleged systemic discrimination; the case Law Society of Upper Canada v. Selwyn Milan McSween raises the question of whether racism hinders black lawyers’ participation in big law firms in Ontario. I am sure this problem is not exclusive to big law firms or Ontario.

Selwyn McSween is a black lawyer found guilty of professional misconduct for “completely abdicating his professional responsibility” to an allegedly unscrupulous law clerk, in the opinion to the Law Society of Upper Canada. However, dissenting appeal panellist Clayton Ruby stated:

We cannot close our eyes to the disproportionate number of black lawyers whom we find before us faced with very grave professional misconduct allegations. …

The legal profession has made no concerted effort to rid itself of the racism inherent in the practice. The effects of racial inequality are real, not imagined, and we do the public no favour by refusing to acknowledge them.

Ruby suggests that the reason black lawyers face increase disciplinary charges is that minority groups have fewer and less meaningful articling opportunities to gain experience compared to “non-racialized” lawyers, law students and others in the profession.

The Law Times article refers briefly to a 1999 report on Racial Equality in the Canadian Legal Profession by the Canadian Bar Association, and I was curious.

According to the report:

Systemic racism or institutional racism is not about individual malice. It is about the way seemingly neutral values and practices can inadvertently serve to promote discrimination. It is about how the legacy of historic discrimination can continue to thrive in our midst.

The report’s authors clearly recognized that, at that time, law graduates from minority groups had poorer opportunities than non-minorities. Such graduates did not get the much-needed training and experience that their white counterparts received to succeed in the practice of law. I wonder what steps the Law Society of Upper Canada, the Department of Justice, the law schools and other decision makers have taken, given the findings of the report. Did they follow the strategic steps and recommendations? I guess not really, if we accept Ruby’s statement.

It would be interesting to know how the law society and the other groups received the report, and a follow-up report on the steps taken would have been very helpful!

As a lawyer who is also black (though that is not all I am, and I do not define myself by the colour of my skin, which by the way is brown not black), I see that systemic racism in law firms is unfortunately still a reality and not merely a perception. However, it is not only in law firms, but in many other industries and professions. I would also say that it is worse for black men than for black women.

This said, not all black lawyers are lacking experience in the practice of law, nor can we say all black lawyers do not obtain meaningful articling opportunities. Many lawyers who also find themselves referred to as blacks have succeeded in the legal profession. I can further add that some progress has been made to include more lawyers who are black in the legal profession; however, not enough.

In my view, these advancements are based on tolerance, not on totally removing the prejudiced policies, practices, perceptions, stigma, stereotypes and ideas about people who are black that continue to thrive in society, law schools and law firms. No matter the colour of our skin, it is not something we can change. It will always be with us and will be the first thing an interviewer will see, no matter whether we are the most experienced, the most qualified or the best candidate.

Tolerance has not been a final solution, but a precursor of continued racism.

I can also say these advancements are to meet diversity goals to show the public how multicultural a firm is, or to meet employment equity requirements, not solely with the intention of truly removing barriers that stop racism. Please note, having to state in an application form that you consider yourself part of a visible minority does not help, or reassure me that I will be considered so that you can meet your diversity goals or employment equity requirements.

At the same time, lawyers who also find themselves to be black have a responsibility to obtain the experience they need to become lawyers, especially if they have to become sole practitioners because law firms won’t hire them. Articling, although required, is not the only way to gain experience. Black lawyers’ the main concern should be getting their degree, learning as well as they can, practicing law and being the best lawyers they can be.

Not getting a good articling experience because you are black is a real problem that needs to be dealt with but not a good reason to become guilty of professional misconduct.

To gain knowledge and experience before I graduated, I volunteered in associations and legal centres. After I graduated, on top of articling, I sat in court most days watching how lawyers pleaded their cases. I talked to other lawyers and judges. Judges were the most willing to guide me. I read on the developments of legislation and case law at least three hours every day, and still do. I went to conferences, seminars, courses and workshops on the topics of law I wanted to specialize in. It takes work, but you need to look beyond the colour of your skin, even if others insist that you do.

But I still have to wonder, why would systemic discrimination still exist in law firms? Within organizations who are there to protect the public and the practice of law? Doesn’t the legal institution exist to uphold and apply the law without any prejudices?

So what do members of the Canadian Legal Profession and decision-makers intend to do about this?

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Comments

  1. Some context here will help.

    1. The dissent was ultimately merely over the amount of the costs portion of the penalty. The minority reduced it. Both majority and minority decided that Mr. McSween had to resign or he’d be disbarred. (The majority gave him 14 days from his receipt of the order, the minority 10 days.)

    2. Mr. McSween wasn’t a wet-behind the ears mid 20 year old. The next 3 paragraphs come from the dissenting reasons

    “[5] Mr. McSween is a 65-year-old Canadian of Afro-Caribbean descent. He was born into extreme poverty in Trinidad and Tobago on May 7, 1945, and came to Canada in 1967. He received a Bachelor of Arts (Honors) Degree and a Master of Arts Degree (Gold Medal) from the University of Manitoba. Mr. McSween worked as an investigator with the Ontario Human Rights Commission and then with the Pay Equity Commission of Ontario. At various points he was employed as a Special Advisor to the Human Rights Commission, a Director in the Citizenship Department, and a Director of Policy in History and Culture for the Government of Ontario. In 1976 he began a PhD at the University of Toronto. He did not finish for health and financial reasons. He testified that he now intends to finish and has only one chapter of his thesis left to complete.

    [6] In September 1997, at the age of 52, Mr. McSween started law school at the University of Western Ontario and graduated in 2000. Despite applying for approximately 100 articling positions, Mr. McSween was unsuccessful in obtaining a position. He instead became Chief Operating Officer of Caribana, a position for which he never received payment. Mr. McSween eventually obtained an articling position. He testified that although he wished to learn real estate during his articles, his principal did not allow this.

    [7] After passing the bar admission course and being called to the bar in 2003, at the age of 58, Mr. McSween again had difficulty finding employment and applied to approximately 50 law firms. In August or September of 2004, he started as a sole practitioner and real estate solicitor.

    3. Maybe it was “ageism” that was the basis for the discrimination, not colour. (Read as much sarcasm as you wish into that comment.)

    4. There are a few firms in this province with significant involvement in human rights issues. And then there’s the Ontario Gov’t which does hire articling students too. Given his background, an assertion that Mr. McSween couldn’t find a job because of “systematic racism” seems off-kilter.

    5. Mr. McSween’s counsel is quoted in the Law Times article

    “McSween was a familiar tale to us,” … “He was a victim of circumstance, his race prevented him from getting the experience he needed, and although he should have been more careful, he simply screwed up by placing his trust in the wrong people.

    He didn’t have any experience because of what he faced, so he couldn’t have known. . . . He was duped … .”

    When considering what to make of that statement, keep in mind some of the information about Mr. McSween’s background.

    Mr. McSween is a 65-year-old Canadian … came to Canada in 1967. He received a Bachelor of Arts (Honors) Degree and a Master of Arts Degree (Gold Medal) from the University of Manitoba. … worked as an investigator with the Ontario Human Rights Commission and then with the Pay Equity Commission of Ontario. At various points he was employed as a Special Advisor to the Human Rights Commission, a Director in the Citizenship Department, and a Director of Policy in History and Culture for the Government of Ontario.

  2. Gilaine St-Cyr Schneider

    Good comments all around but what stands out for me are the assertions from panelist Ruby regarding the disproportionate amount of black lawyers facing disciplinary issues, what statistics do we have? Or even to the comments of the lawyer defending namely using race. Obviously we all know the proportion of white lawyers vs black in Canada is unbalanced. But in order to make these comments he needs to be assured that all cases are dealt with the same amount justice. I know of many cases where the professional misconduct of some civil lawyers have received only a slap on the hand.
    Does there exist such equality that we can bring in examples of proportion as if to say blacks lawyers obviously need the articling opportunities or magic wand to fix this problem. Or are we facing in fact a unique situation where an individual chose actions that were not acceptable relative to his particular situation which has nothing to do with his color and maybe much more with his age and experience.

  3. “As a result, systemic racism (together with age discrimination) constitutes a mitigating factor that should be taken into account in deciding appropriate discipline.”

    Very good analysis on the same case on The Court:

    http://www.thecourt.ca/2012/02/21/sentencing-stereotypes-racism-in-the-legal-profession-in-lsuc-v-mcsween/