Nothing in the Law Society of Upper Canada’s Rules of Professional Conduct places much real pressure on the profession to incorporate equality in a meaningful way. If law schools cannot instill the true worth of equality into the minds of future lawyers, the expectation for a truly diverse Canadian legal profession becomes no more than an unrealistic pipe dream. By presenting ethical training as the sort of “easy” course students take in order to graduate, law schools may simply be creating new lawyers who are, as Professor Rosemary Cairns Way described, only “rhetorically committed” to equality.
Handbooks for equality: Hiring Practice Guidelines & Rules of Professional Conduct
Two examples demonstrate the Law Society’s effort to create a profession that affords not only equal access to justice, but also equal access to the profession by lawyers from certain disadvantaged groups.
First, the Society’s Summary of Student Hiring Practice Guidelines (found here), which governs the recruitment process of articling positions in Ontario, mandates the promotion of “fair hiring practices of students, lawyers and paralegals.” The summary lists out recommendations for law firms on how to create a non-discriminatory hiring process, and even devotes two of its four pages to a list of questions which would be inappropriate during the interview.
Second, rule 5.04 of the Rules of Professional Conduct sets out comprehensively a lawyer’s duty not to discriminate. The fact that the first sub-rule, 5.04(1), describes a lawyer’s “special responsibility…not to discriminate…with respect to professional employment of other lawyers or articled students” would suggest that the Society places primacy on promoting equality within the legal profession itself.
However, despite guidelines and rules, inequality in the profession is still barring many graduates from disadvantaged groups from securing meaningful articling positions after law school. (See for example, this article by Kendyl Sebesta, where a lawyer from Trinidad claimed systemic disadvantages in the legal profession barred him from a meaningful articling experience and eventually led him to hire a law clerk who involved him with a series of fraudulent mortgage transactions).
Law school courses with a heavy ethical component can easily be brushed aside as non-essential courses, since they usually carry a lighter course load and are short-lived (for example, the mandatory Alternative Dispute Resolution course from our January term). When a first year student’s opportunity to learn about equality is reduced to a one-time course, it is not too surprising that values like diversity and equality do not necessarily get transferred from law schools into legal practice. Without adequate equity training while in school, the LSUC can hardly expect the legal profession to make much progress in overcoming issues of inequality.
Equality in The Canadian Legal Profession: Diversity as a Bandwagon?
Many express concerns about the lack of diversity in the Canadian legal system. In a 1999 report to the Canadian Bar Association, the Working Group on Racial Equality in the Legal Profession examined the question of racism in the profession. The 101-page report found that law students from disadvantaged groups found fewer and less meaningful articling opportunities compared to others in the profession.
Following the report, there have been some efforts on the part of several law firms to develop diversity and equity initiatives. For example, in 2006, FMC created a diversity and inclusion initiative with a mandate to “ensure that all members of [the] firm have the opportunity to develop their unique talents to nurture their ongoing success…[and] to foster an environment where everyone respects, supports and learns from each other’s skills, talents and differences.” A number of firms have similar diversity and equity policies, but As Gail J. Cohen said in her article, these do not necessarily translate into active promotion of diversity and inclusion. By treating “diversity” as a separate value, the legal profession may simply be building a “diversity bandwagon” that is ineffective when it comes to equality.
Incorporating Equality in School: Prioritizing Equality
To avoid a similar bandwagon, law schools should mandate ethical training that is both substantive and meaningful. By that, I mean content which would be at least as challenging as the content of our other legal courses. Otherwise, ethical training remains to be no more than a graduation requirement law students can easily overlook.
Even in the short time spent in law school, I can recall at least two incidents which reflect the sentiment that “equality does not really matter.” During orientation week, many students walked out of the Equity Seminar presented by the Law Society of Upper Canada. Judging by the scant details provided in the presentation (for example, PowerPoint slides showing statistics of demographics in the legal profession), perhaps those students did not see the value in attending the seminar. I also think it was quite telling for the Faculty to schedule the seminar during the last part of the last day of orientation. If the school wanted to give meaning to equality for law students, perhaps from the get go, at orientation, it needed to give equality more primacy.
In a separate incident, a racial slur was scrawled across a stall in the Faculty’s men’s bathroom. Although the administration was quick to condemn the act as “cowardly” in a faculty wide email, it was unclear what pragmatic steps can be (or have been) taken as a response (In an interview with CBC, Christien Levien, President of University of Ottawa’s Black Law Students Association, said that he hoped the university would follow up on his recommendations, but to date it is unclear whether the administration will be implementing them). The lack of follow-up action may be indication that the promotion of equality and inclusion at our school remains no more than a rhetoric.
Perhaps the concern for ethical training in law school should not be whether it should be mandatory, but how to make mandatory training meaningful for students. Statistics, power points, and presentations from the LSUC did not provide me, as a first year student, with adequate perspective on how equality can be incorporated into the legal profession. Until law firms, law societies, and law schools step up their game and give equity training that is comparable to legal courses in law school, it is easy to see how equity and diversity training will remain no more than a bandwagon that law firms, schools, and students can easily abandon.
Elaine Ng is a first year student in the Ottawa University Faculty of Law, Common Law Section.