50 Shades of Neutrality: A Review of “Professionalism”

Author: Aruba Mustafa Guest Blogger

With an uncritical eye the Chief Justice of Ontario’s report on professionalism makes a virtuous call for higher standards of professionalism for lawyers. It is a response to the reality of declining professionalism. The report, as well as the prevailing discussion on professionalism, does not reflect certain realities. The discourse bifurcates professionalism and morality in a way that the concept of professionalism is assumed to be morally neutral. The elements of professionalism are listed as: scholarship; integrity; honour; leadership; independence; pride; spirit; collegiality; service; and balanced commercialism. Not only does the list exclude a recognition of some fundamental attributes, but the report also ignores that these values are built upon a history of moral choices, choices that elevate the white middle-class male as the norm against which the rest is to be measured, on a range of deviancy.

Neutrality is appealing. Our legal system relies on objectivity and impartiality. But, neutrality is a myth. The Rules of Professional Conduct and the concept of professionalism in law were not developed in a vacuum. Feminist discourse has dissected the very many examples of exclusion and discrimination espoused by these same ideas of professionalism, noting the discriminatory result of neutral policies.

The legal profession is conservative and traditional. Firstly, it is the decline of the traditional professionalism that makes it possible to import progressive ideas that accommodate differences and reduce exclusionary practices. Secondly, it is important to mandate, or at least encourage, a positive obligation to address discrimination. While the commercialization of the profession may be problematic, a cry for more professionalism is not the right answer. It is time we take a lesson from Downton Abbey and modernize instead of creating a moral panic and reminiscing about the golden age of traditional and conservative professionalism.

Professionalism arose from, and is informed by, a perspective of masculinity, whiteness, class privilege and Protestantism.[1] It has historically been a tool for exclusion from power. But this is not just history. There are relatively recent examples of very obvious exclusion from power in the upper echelons of the legal community. Justice Bertha Wilson and Justice L’Heureux Dubé faced abject lack of collegiality upon their appointment to the Supreme Court of Canada. The treatment they received by otherwise respectable and honoured male members of the bench at different levels of courts was open and explicit. The same conduct today would probably not be tolerated so expressly. The acceptance of women on the bench still exists with fragility[2] but with more nuanced and subtle forms of exclusion.

For example, a University of Ottawa Common Law Student Newspaper published an article titled, “You Have a Right to Remain Stylish”, pouring out advice on the right amount of jewelry to wear and the right skirt length to keep. It received significant criticism for its emphasis on conformist images of professional dress. Not only is it problematic that we continue to put unnecessary emphasis on women’s dressing and appearance rather than their merit and professional abilities, it is equally problematic because it promotes a very narrow image of acceptable professionalism, resulting in an exclusion of dressing as a means of cultural expression. The professional norm of dressing is informed by ethnocentric, patriarchal and heterosexist values but is presented as morally neutral.

Secondly, similar sentiments are noticeable in the attitudes of my peers in the academic sphere. This is exemplified by sentiments towards the cyber feminism course as “male bashing”, or a by renunciation of “feminist” perspectives imported into some criminal law classes. All of a sudden any argument regarding the need for further gender equality is labeled as feminist, differentiating and thus marginalizing those voices as deviant from the norm of the profession.

It is a decline in adherence to traditional ideas of masculinity and gender roles that opens the space for the inclusion of difference. Remaining neutral maintains oppressive orders and impedes progress. On the scale of discriminating, remaining silent and making positive effort to include, the legal profession is stuck somewhere in the middle, not quite where it should be.

That middle is toleration. In a recent case on discrimination, Law Society of Upper Canada v. Selwyn Milan McSween, the dissent notes that the legal profession has “made no concerted effort to rid itself of the racism inherent in the practice”.[3] The progress that we have made in the profession to increase inclusion is based on tolerating differences. Tolerance can, at most, be characterized as a lack of outward exclusion or hostility. It does not go far enough, and it is “a precursor to continued racism”.[4]

There is no shortage of examples of discrimination in the legal field. A recent study conducted by the Quebec’s Human Rights Commission concludes that among those equally skilled and qualified, applicants for jobs are 60 per cent more likely to be invited for an interview when their family name is of “Québécois origin”, as opposed sounding African, Arab or of Latin-American in origin.[5] With empirical evidence such as this, which only explores the very formal means of discrimination, I do not think it is necessary to have to convince anyone further that these issues exist and will continue to exist if measures are not taken to reflect these realities in our contemplation of professionalism.

For the profession to be sustainable in the face of multiculturalism and progression, it must address the reality of systemic discrimination by replacing the emphasis on traditional notions of professionalism with a critical approach to the Law Society of Upper Canada’s history of neutrality in its rules of conduct. Instead, it must include elements of positive obligation towards inclusion and diversity so the legal profession can move from just tolerating difference to encouraging and benefitting from it.

[1] Constance Backhouse, “Gender and Race in the Construction of “Legal Professionalism”: Historical Perspectives”.

[2] ibid, at 18

[3] Yosie Saint Cyr, “Systemic Discrimination in Law Firms: Perception of Reality? My Point of View”, online: slaw http://www.slaw.ca/2012/02/02/systematic-discrimination-in-law-firms-perception-or-reality-my-point-of-view/.

[4] ibid

[5] Commission des droits de la personne et des droits de la jeunesse, Mesurer la Discrimination å L’Embauche Subie Par Les Minoritiés Racisées, (Quebec 2012) http://www.cdpdj.qc.ca/publications/etude_testing_discrimination_emploi.pdf

Aruba Mustafa is a first year student in the Ottawa University Faculty of Law, Common Law Section.

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