What does it mean to be a lawyer?
Is it to possess an encyclopedic knowledge the law? To use this knowledge to make money? Is being a lawyer simply just another way to make money (as some who correctly identify the lack of business skills among lawyers as one of the major challenges for innovation or reform point out)?
What differentiates the law from other businesses are the professional responsibilities imposed on a lawyer, through the Model Code of Professional Conduct and its implemented versions across Canada. Some of these responsibilities, such as the duty to the court and to the justice system, are long standing, even if not properly implemented, in the name of other seemingly conflicting duties, such as the duty to the client.
These professional responsibilities do vary slightly across Canada, and are continuously revised and changed. Some of these changes are relatively minor, while others reflect the changing needs and circumstances of the legal professions in various jurisdictions.
For example, in 2011, the law society in Ontario added new rules to the Rules of Professional Conduct for limited scope retainers, also known as unbundled services, and added further commentary on the subject in 2015. Although these arrangements were theoretically possible well before the rule changes, the law society identified the need to provide some guidance to licensees, and also address the growing challenges with self-representation and access to justice.
More recently, the rules have been amended to regulate awards used for marketing purposes, require identification of whether a licensee is a lawyer or paralegal, and prohibit second-opinion advertising. As a general theme, the rules tend to focus on the public interest and ensuring that practicing law is not just another way to make money.
Another significant theme that can be found within recent amendments to the rules is guidance on how to deal with vulnerable populations. Lawyers are a powerful profession, and when that power is abused it can understandably be problematic. In 2014, adoption of the Model Code in Ontario meant that rules were added relating to the recruitment of law students. It would appear to be a no-brainer that law firms should follow the procedures that law societies establish for the engagement and recruitment of students, but you’d be surprised (or perhaps not) at how many firms routinely disregard these procedures.
You see, lawyers deal with rules and procedures all the time. And although we are quite adept at interpreting and applying these rules in creative fashions, we’re not always that great at following rules when we’re required to do so. Sometimes that simply shouldn’t be an option.
Although the Model Code contains provisions that a lawyer must not sexually harass or engage in any other form of harassment of others, Ontario felt the need to go even further. The Rules provide an objective assessment of sexual advances, request for sexual favours, or other conduct of a sexual nature that might reasonably to be construed to be unwelcome. To avoid any confusion at all, specific examples of what constitutes sexist behaviour is provided. One notable amendment in 2009 points out that sexist jokes are an example of a violation of this rule, because such jokes are rarely funny to their targets, and are frequently offensive to others in the vicinity as well.
If you’re confused as to why the Rules in Ontario detail sexual harassment so extensively, I’d point to the contemporary dialogue on Harvey Weinstein. Elizabeth Renzetti discusses Weinstein in The Globe as part of a systemic problem that is highly unreported,
It’s tempting to look at the appalling and possibly criminal behaviour of high-profile men accused of sexual harassment as a kind of reverse great-man theory of history – the disgraceful-man theory of predation. When accusations of assault or harassment cases make headlines, it’s often because there’s a powerful man at the centre – Roger Ailes, Bill Cosby, Bill O’Reilly, and now Harvey Weinstein.
But looking at this strictly as a problem perpetrated by individuals does not acknowledge that workplace harassment of women is a failure of culture and power structures, and it’s ongoing. You can pull one weed and the whole garden will still be rank.
Stuart Rudner, discussing the case in the Lawyers Weekly, also touches on how these issues manifest themselves among lawyers,
Within the legal industry, this [type of sexual harassment] was not uncommon. While some of the stories may have been urban myths, my friends and I often traded stories about senior partners that would routinely reduce students and young lawyers to tears, verbally assaulting them and in some cases, throwing objects at them. There were also rumours of senior partners who engaged in sexual relations with junior lawyers, and questions about whether those junior lawyers were really willing participants. The common thread was that the senior partner was never reprimanded or removed from the firm, despite the fact that their behaviour was common knowledge.
Perhaps the only thing more unreported than sexual harassment in the legal industry is harassment based on physical appearance, using ethnic or racial characteristics. The legal industry has long been in denial about this, with lawyers famously throwing up their hands over the “lack of evidence.” And so the law society in Ontario conducted an inquiry into the status of racialized licensees, and discovered what many of us have been saying all along – there is a widespread and pervasive problem in the legal industry related to racialized lawyers.
This doesn’t mean that senior partners in law firms are meeting in closed rooms wearing KKK hoods, or that there is a massive conspiracy among lawyers to keep out racialized lawyers. More realistically there is a generalized lack of understanding and insight into the issue of racialization, and that the legal community still is largely homogeneous when it comes to race, especially in the positions of leadership.
To address this, the law society has attempted to implement strategies to help foster a culture shift in the legal community. Some of these will invariably include education, but the most controversial one has been a Statement of Principles that all licensees will have to sign in 2017. Following this, there will be additional self-reflections and CPD on the issues of equality, diversity and inclusion.
The Statement of Principles are not by themselves incredibly controversial, and reflect consensus principles found in human rights adopted throughout our courts and tribunals. They are also customizable by the licensee, as long as the incorporate the broad principles of equality, diversity and inclusion, not only to clients and colleagues, but also to the public.
Perhaps it’s this obligation to the public, arguably even outside of the scope of the provision of professional services, that has attracted the greatest opposition. Queen’s University’s Bruce Pardy expressed his hyperbole in the National Post,
My first instinct was to check my passport. Was I still in Canada, or had someone whisked me away to North Korea, where people must say what officials want to hear? Forced speech is the most egregious violation of freedom of expression, protected by section 2(b) of the Charter of Rights and Freedoms. In free countries, law governs actions rather than expressions of beliefs. People can be required to obey the speed limit and pay taxes, but they may not be compelled to declare that the speed limits are properly set or that taxes are a good thing. The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”
The paradox of Pardy invoking the Charter against an expression of of principles found within that same Charter is apparently lost on him.
Fortunately, the Supreme Court of Canada has already weighed in on this type of compelled expression in Lavigne v. Ontario Public Service Employees Union, where the member of a union disagreed with the means and content of the political messages expressed by his union. The mandatory payment of fees under the Rand formula was a claimed violation of his s. 2(b) rights.
The unanimous Court in Lavigne found there was no Charter violation, albeit for different reasons. On the basis of this decision, the Statement of Principles would clearly engage s. 2(b) rights as a form of expressive content (via Irwin Toy), meaning the purpose for which any expression then attracts scrutiny. The law society does not prescribe a specific form of expression for licensees, but rather a general one which itself reflects Charter principles. There is nothing within the law society’s materials that prevents a member from amending a Statement of Principles to append or modify the contents to also affirm a commitment to s. 2(b) expression rights around those same principles.
The reason why this might be important is that even human rights evolves. Our very concept of analogous rights under. s. 15 would not even exist without the robust discussions around the delineations of equality rights found in cases like Andrews, Egan, Vriend, M v H, Miron, Corbiere, and Lavoie. The Court notably rejected extension of analogous grounds in cases like Turpin, Généreux, Haig, Finita, Delisle, and Malmo-Levine.
In other words, a commitment to recognize a commitment the Charter is not a compelled expression to a set of enumerated beliefs but rather a framework to which to achieve broader principles, not unlike a commitment to the Rand formula for the proper functioning of the labour system in Lavigne. This affirmation need not even necessarily be construed as a commitment to the same analysis or conclusion of the Courts in any of these cases, or even the understanding of them by the law society, but rather that there is an obligation to promote these principles generally.
Just LaForest’s analysis in Lavigne emphasized the potential for coercion in association, but clarified that s. 2(d) of the Charter does not protection us from associations we wish to avoid. Freedom of association is not necessarily a right to isolation,
…the organization of our society compels us to be associated with others in many activities and interests that justify state regulation of these associations. Thus I doubt that s. 2(d) can entitle us to be free of all legal obligations that flow from membership in a family… In short, there are certain associations which are accepted because they are integral to the very structure of society. Given the complexity and expansive mandate of modern government, it seems clear that some degree of involuntary association beyond the very basic foundation of the nation state will be constitutionally acceptable, where such association is generated by the workings of society in pursuit of the common interest. However, as will be seen, state compulsion in these areas may require assessment against the nature of the underlying associational activity the state has chosen to regulate.
Just LaForest was therefore able to find a s. 2(d) violation that was saved by s. 1, but only to the extent that union fees are expended on matters not substantially related to the labour relations process. For there to be a greater Charter violation here with the Statement of Principles, the promotion of equality, diversity, and inclusion would have to be even more completely removed to the purposes and function of the law society, which is a challenging argument to make.
There is always another option for those who disagree so vehemently with an obligation to promote equality, diversity and inclusion, and that is they can choose not to be associated with the law society. There is no forced association here. Being a lawyer is still a privilege, one that comes with responsibilities, and not a right in of itself. The Court in Pearlman v. Manitoba Law Society Judicial Committee stated,
…the Law Society has total control over who can practise law in the province, over the conditions or requirements placed upon those who practise and, perhaps most importantly, over the means of enforcing respect for those conditions or requirements. Thus, the… legal profession is self-governing in virtually every aspect.
The ability of law societies to affirm a commitment to Charter principles and control membership on the basis of those values will be further explored by the Court in Trinity Western, and may shed greater light into the limits of these powers.
There is another detractor from the Statement of Principles who further illustrates the needs for such measures. Conrad Black, also writing in the National Post, similarly utilizes ample alarment that would put Henny Penny (aka Chicken Little) to shame,
It comes as no surprise to me that a profession (in which I am officially licensed myself though I never formally practiced it) should take unto itself the totalitarian power to exclude or otherwise punish anyone who declines to declare total fealty to principles enunciated by the professional self-regulator. I have come to recognize the law as a largely venal association of self-serving gougers riveted on the back of society and dispensing a hideously bloated service on a defenceless public as the lawyers jubilate in their 360-degree cartel.
It’s unclear which law society Black is licensed in (I’ve checked several across Canada to no avail), but the fact that he invokes these credentials points to another reason why the Statement of Principles is so sorely needed. Lawyers, and those who purport to be representatives of the legal system, wield enormous credibility and influence in society. We essentially “signal” to the government, institutions, and the public what conduct is acceptable, and what is not. So when Black states the following while invoking his legal credentials, it’s particularly troubling when he states,
Diversity and inclusiveness… are faddish and jargonistic concepts and have never been considered obligatory to the beliefs of reasonable people, until the recent triumph of political correctness. This is the cultural enemy that has arisen within, after Western civilization routed the largely external and outright evils of Nazism and international Communism. They are largely methods for the atomization of society into pockets of political identity that are then pandered to by political parties and leaders. The whole process is anti-meritocratic, as affirmative action quotas are given more weight than competitive, talent-based applications for positions.
Equality, diversity and inclusion are not optional or unreasonable, and have nothing to do with political correctness. Any lawyer who takes that position would likely have difficulty passing a bar exam in Canada. They are essential to the fabric of the Canadian legal system and our very democracy.
Unfortunately the legal system, as a whole, still tends to cater to the legal needs of the wealthy (and if you dispute that, check your understanding of what the middle class in Canada currently is), including people like Conrad Black. This results in an environment where lawyers tend to appease wealthy interests, including where those interests and positions oppose equality, diversity and inclusion.
Some lawyers may even take or espouse positions contrary to these principles in order to appease such wealthy clients, sometimes when they do not even believe it themselves. These actions can help create the type of hostile work environments described by the Challenges Faced by Racialized Licensees Working Group, but also provide these wealthy and influential societal actors with the perceived moral cover they crave. Signalling in this manner is one of the most detrimental ways that lawyers can undermine their professional responsibilities to the public and to the legal system.
Being a lawyer in 2017 should mean more than just imparting specific technical knowledge to a client when requested, but also means not laughing at the sexist, homophobic, or racist joke that a client makes in an effort to endear yourself to him or herself.
The most compelling argument in favour of the Statement of Principles is the penalty that will be imposed by the law society for non-compliance,
The Law Society will ask licensees to report on their compliance with this requirement in their 2017 report. Licensees who report non-compliance in the 2017 Annual Report will be advised of their obligations in writing
No suspension. No disbarment. Not even a warning. Just a reminder that this is an outstanding obligation. If that’s not minimal impairment, I’m not sure what is.
The approach adopted here may in fact seem to light handed, given the important issues at play. But they fit in perfectly with the law society’s mandate, which is remedial and intended to promote a culture shift in the profession. It is why they are combined with self-assessments and CPDs on equality, diversity and inclusion.
 I agree with the courts below that the Law Society has the authority to do so. The Law Society is required by statute to protect members of the public who seek to obtain legal services by establishing and enforcing educational standards for practising lawyers. CPD programs serve this public interest and enhance confidence in the legal profession by requiring lawyers to participate, on an ongoing basis, in activities that enhance their skills, integrity and professionalism. CPD programs have in fact become an essential aspect of professional education in Canada. Most law societies across the country have implemented compulsory CPD programs.
Maintaining a legal profession with widespread violations or opposition to equality, diversity and inclusion principles is not in the public interest, and directly undermines the public confidence in the legal system. Equality, diversity and inclusion are themselves issues of competence to practice in modern society, and require continuous and ongoing education and development for every lawyer in the province.
The Court in A.G. Can. v. Law Society of B.C. reviewed the disciplinary activity of the law society in B.C. over advertising practices, and emphasized the distinctions between the freedom of expression with the elective process in our democratic institutions, and that of economic free speech,
The ethical, moral and financial aspects of a trade or profession can be regulated by a province within its boundaries.
Regulation for compliance with ethical and moral aspects of the legal profession is even more within the mandate of the law society than the type of economic free speech addressed in advertising. The Court in Pearlman summarized this concept as follows,
The general public has a vested interest in the ethical integrity of the legal profession…
…the provincial Legislature has entrusted the protection of this interest to the considered judgment of the members of the legal profession itself.
The public has an interest in ensuring that lawyers, who signal to society what the boundaries of our laws may be, are at the forefront of preventing not just the next Harvey Weinstein, but the one who is engaging in inappropriate behaviour right now. That person likely has access to counsel, disregards his or her advice, and in part, feels empowered because the lawyers in their vicinity do not openly and unequivocally espouse equality, diversity, and inclusion principles. The scarier thought is that this offender might themselves be a lawyer.
Quite simply, that professional obligation is exactly what distinguishes the profession of law from any other business relationship. The buck stops here. We are the front line when it comes to building a better society.
There’s no way we can do that when our own house is in disarray.