The motion passed at November Convocation, creating a pilot Legal Practice Program, also charged the Law Society and the profession to make evidence-based decisions about the various components. The motion, as amended, will pass on some of the costs to the profession, which is yet another reason why we should be very much invested and interested in how this develops.
The Professional Development and Competence (PD&C) Department is expected to develop a formal evaluation and reporting plan before the pilot is launched in 2014.
The problem is that there are just over 2,000 potential articling candidates (and growing) every year in Ontario. I've mentioned before that it is impossible to get a statistically accurate reading of many of the core issues in debate with a population this small. In addition to sample size obstacles, there are non-response biases which will invariably confound the data. In other words, equity-seeking groups already feeling marginalized are unlikely to volunteer the exact type of information PD&C needs.
Confounding the data further (additional "noise") are the market changes which have been steadily eroding articling positions in recent years. The University of Toronto law student paper Ultra Vires released a report this week indicating that recruitment was at the lowest rate since 2003.
Although their findings include placements from other schools in Ontario, one of their major methodological limitations was that it failed to account for student participation in the Fall Recruitment process, though not for lack of trying. Nearly every single Career Development Office was unwilling to share this information. If the Law Society expects them to be more cooperative with them they may be in for a surprise. This is crucial because many equity-seeking groups are shunning big-firm opportunities even before they arise, given what they have observed elsewhere.
The UofT article also sheds light on the stresses experienced by the current recruitment process. Some students appear unfazed, while others report high levels of stress and anxiety. This could potentially be attributable to personal characteristics. Then again, it may not be. We're unlikely to find out, regardless.
The point here is that PD&C and the legal community will have to make certain assumptions about inequities and hiring practices that the raw data simply will not be able to demonstrate. Why should they do this? One participant during the debate referred to "Bencher notice," similar to judicial notice when a fact is assumed as a truth when it cannot be reasonably doubted.
Consider a new study this week, Hiring as Cultural Matching: The Case of Elite Professional Service Firms, by Lauren A. Rivera in the American Sociological Review, indicating that hiring involves more than just competence, but extends into what she terms as "cultural matching." It follows that equity-seeking groups and socio-economically depressed populations in Ontario invariably share different micro-cultures than the dominant elites in large firms. Notably this culture matching extends even beyond what we would consider vulnerable populations, into a more in-group versus out-group dichotomy, often referred to by firms as "fit." In fact this "fit" was frequently the most cited formal criteria for hiring, even by recruiters who disliked the concept.
Rivera focused on the process of hiring decision-making to reveal the subtle factors at play, warning that sociological studies relying on quantitative data on individuals or pre/post hire comparisons are of limited use. She uses highly educated professional firms because many of the traditional structural and status differences between applicants are minimized. This means that the cultural component for law firm hiring may be even more pronounced than in society generally. The need for fit was found more strongly in law firms than other elite professionals such as investment banks and consulting firms, despite the diminished need for interpersonal skills during the early years of legal practice.
Cultural criteria were entirely distinct from client development skills, which recruiters thought that candidates could be taught. The real reason for "fit" criteria was that new recruits would likely become part of the firm's primary social network, given the extensive amount of time spent with each other within the firm. The utility of a new hire was then to increase their own personal enjoyment at work. In fact, one way of measuring this fit was to see how the candidate fit with the recruiter, as the personal embodiment of the firm's culture.
Rivera found that numerous similarities are used in hiring, including extracurricular and leisure activities, life experiences, and presentation style. Some activities are closely tied to culture and socio-economics, such as yachting or golf at the family's country club, or going to a private elite high school. Many equity seeking groups can barely afford to law school (and many who are eligible choose not to go given the expense), and can hardly be expected to adopt such recreational activities on top of the demands of law school and (frequently) part-time employment. More importantly, such cultural similarities on how applicants conduct themselves outside the office should hardly be the basis for licensing.
Ironically, less affluent students place a higher emphasis on merit-based activities such as grades, despite their relative ineffectiveness. They also would not have the breadth of extracurricular experiences as their more affluent colleagues even if they began to partake in them later in life.
The research confirms that firms and recruiters more easily understood persons and characteristics that conform to familiar categories, and penalized those who deviated from them. "[A]ssessors purposefully used their own experiences as models of merit, believing that because they had been at least somewhat successful in their careers, candidates who were experientially similar to them would have a higher likelihood of job success," said Rivera. This extended beyond just soft skills into technical capabilities as well, independent of any objective bearing of merit.
Fit was given higher preference than grades, courses taken, prior work experience, or the interview experience, because firms believed that they could teach recruits what they needed to learn on the job. "[T]hey commonly described their work as “not rocket science” and cited the extensive training given to new hires as minimizing the importance of prior technical knowledge for job success," said Rivera. This seems to undermine the basic arguments for eligibility of licensing, and probably is not what clients have in mind for their fees.
But as I always say, it's the retention of equity seeking groups and not simply the recruitment which is a problem. Rivera discovered that firms use fit to try to reduce attrition, because the assumption exists that culturally similar candidates are more likely to enjoy their jobs and enjoy their co-workers, which encourages them to stay with a firm longer. For articling candidates this often means that attrition of equity seeking groups can be fostered or accelerated by ensuring they do not enjoy their working conditions socially. This happens a lot, in the form of cold shoulders, verbal abuse, and disproportionate allocation of work. The inequities are not simply in the positions secured, but in the work that those respective positions entail.
Cultural similarity was considered a priority above and beyond fostering gender and racial heterogeneity. "In essence, firms sought surface-level (i.e., demographic) diversity in applicant pools but deep-level (i.e., cultural) homogeneity in new hires," said Rivera. Where equity seeking groups are recruited and retained,it is usually at the expense of their distinct identities, and often specifically because they have tolerated or accepted inappropriate behaviour or comments towards the "out-group" so that they can be considered part of the "in-group." Much of this activity would be clear violations of human rights and harassment legislation, but invoking either is a quick way to be designated to the "out-group." For the regulator to silently condone or at least allow this to continue is simply not justifiable.
Rivera's findings are consistent even within same-sex and same-race dichotomies, and can even operate in reverse of equity seeking employment (at least in the short-term). This demonstrates definitively that the subtleties of cultural fit will be impossible to identify through a quantitative approach towards Ontario law firms.
These issues are paramount not just for the regulatory function but for the equity in a profession that originates in the defence of justice. Rivera highlights the importance of hiring practices and its importance to a profession as follows:
Hiring is a powerful way in which employers shape labor market outcomes. Hiring practices are gatekeeping mechanisms that facilitate career opportunities for some groups, while blocking entry for others. As an entry point to occupations and income brackets, hiring is a critical site of economic stratification and social closure.
At least one bencher has already drawn the linkages between Rivera's study and the articling debate in Ontario:
We still are very uncomfortable discussing these issues as law firms and I think we have miles to go in terms of openly talking about these issues and being openly transparent and accessible about these issues
I made similar comments recently in The Globe. It might be a difficult conversation to have, and I don't expect that any of us initiating it will find a welcome mat waiting for us at the firms who insist on using an amorphous "fit" as the basis for their recruitment policies.
But the conversation will happen, and hopefully the concerns will initiate change in how the pilot is implemented and followed through, and ideally it will help transform the cultures of Canadian law firms to better reflect the multicultural nature of Canadian society.