Stepping Up for Diversity: Law Societies Must Begin to Address the Challenges Faced by Racialized Lawyers and Paralegals
Law Societies have a lot on their plates these days: ABS, access to justice, advertising, articling . . . and that’s only the first letter of the alphabet! It is critical that the work of the Law Society of Upper Canada’s Working Group on the Challenges Faced by Racialized Licensees not get lost in all this regulatory alphabet soup. The report is important. It is groundbreaking. It is also controversial. And it is necessary. This report will be debated by Ontario’s benchers on December 2nd. The Law Society of Upper Canada has a real opportunity to exercise strong leadership on diversity in the profession.
The report is relatively short by Law Society standards (less than 40 pages) and contains a mere 13 recommendations. My uOttawa colleague Professor Joanne St. Lewis made the strong case for moving forward on the recommendations in her Slaw column here. I won’t repeat her arguments but only highlight a number of important elements of the report.
Some of the recommendations should not be particularly controversial: reviewing the Rules of Professional Conduct and amending it if necessary to reinforce the professional obligations of all lawyers and paralegals to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibility of lawyers and paralegals (Recommendation 1); and develop model policies and resources to address challenges faced by racialized lawyers and paralegals (Recommendation 2);
What seems to sticking in some Ontario lawyers’ craw is the recommendation that every lawyer and paralegal will be required to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally and in their behavior towards colleagues, employees, clients and the public. I am not sure why some lawyers oppose this (other than a knee jerk reaction against being told by the Law Society to do anything).
I am told that some lawyers or benchers have raised “free speech” concerns. This seems a bit far-fetched to me. The proposed statement of principles can be taken to be nothing more than a positive affirmation to abide by specific Rules of Professional Conduct and by the law. To the extent that it goes beyond this, the Supreme Court has clearly stated that Law Societies may validly regulate “negative speech” by lawyers. In Doré, the Supreme Court specified that when regulating lawyers, Law Societies had to consider “Charter values” like freedom of expression. In the case of the proposed statement of principles, Law Society regulation would involve the promotion of a countervailing Charter value: equality.
Perhaps the most exciting part of the report is the recommendation that the Law Society require law firms with 25 or more lawyers or paralegals to provide diversity information which the Law Society will then publish in order to measure progress. Every four years the Law Society will develop and publish an inclusion index. If you don’t track diversity, you can’t monitor progress.
The final recommendation rightly looks inward and recommends measures that the Law Society itself should take.
There are many fair criticisms of the report. For example, the County of Carleton Law Association expressed concern that the report does not focus enough on racialized licensees as smalls and soles. This is a valid concern.
But we cannot let the perfect be the enemy of the good. This is more than a good report. It is visionary and it is necessary. It is time to move forward with stronger concrete steps to promote diversity within the profession. The Working Group on the Challenges Faced by Racialized Licensees has provided the path forward. It is time to start walking down that path.