The Law Society of Upper Canada is again in the news. This time, the focus is on the recently released Consultation Paper entitled Addressing Challenges Faced by Racialized Licensees. An article in the Toronto Star has called the report “blunt” and characterized it as “containing disquieting findings.” Another piece in the Law Times, titled “Non-white lawyers feel alienated, report finds” details a variety of the report’s findings and highlights LSUC’s invitation for input.
This media attention is no doubt a positive thing. The Consultation Paper confirms what many have been saying for years: “racialization is a constant and persistent factor affecting licensees during entry into practice and opportunities for career advancement.” In a more proactive vein, the Consultation Paper also sets out a number of questions for the profession about how best to address the challenges faced by racialized licensees. These questions form the basis of LSUC’s consultation – it has invited written submissions until March 1, 2015 on the questions set out in the Consultation Paper and “welcome[s] additional ideas, initiatives or practices that may assist in addressing the challenges faced by racialized licensees.”
The Consultation Paper, along with supporting documents available on the LSUC website, are worthy of a careful read. Some of the statistics are eye-opening. For example, the Paper reports that 43% of racialized licensees, compared to 3% of non-racialized licensees that participated in the study perceive ethnic/racial identity as a barrier/challenge to advancement. The materials also include first-person narrative accounts from racialized licensees. Many stories are equal parts enraging and heart-breaking. Two samples:
Most of us are sole practitioners because we could not get into large firms because of racial barriers; the ones I know who got into firms ended up leaving because of feelings of discrimination, and ostracizing and alienation – [i.e.] not being invited to firm dinners and outings. Some Black lawyers feel suicidal because of repeatedly running into racial barriers (not academic performance) trying to enter large firms; there are firms that believe if they hire Black lawyers they will lose their clients
I was on the phone with a client, an older lady. I put a lot of thought into the work. She complained to the partner about me. I asked her myself and she could not say one thing that I did wrong. I was scared. The assistant said that she did not like you because you sounded young, you had an accent, and you can tell you are Chinese because of your name. When I went to the partner, all I could say was that she was not happy with the service. Maybe I should speak up but it was hard to say that the client, your friend at the golf club and church, was racist. I was never reprimanded but I got that feeling that I would never serve the client.
All lawyers should read the Consultation Paper and engage with the consultation process. The issues raised demand immediate attention. Take, for example, the finding in the Consultation Paper that almost half of the racialized licensees surveyed “strongly or somewhat agreed” that they had struggled to find an articling position or training placement. This information supports concerns raised by equality-seeking groups cited in the Articling Task Force Final Report including the concern that equality-seeking groups “may be disproportionately represented among those unable to find articling positions.” It also revives concerns raised in the Minority Report that offering two pathways to licensing “will do nothing to address the concerns of equality-seeking groups about whether articling is discriminatory and, arguably, institutionalizes a different form of discrimination in the LPP.”
Some initial information on the demographics of this year’s inaugural LPP class further suggests that we need to take these concerns seriously. Professors Alain Roussy and Michelle Flaherty are currently conducting a study of the University of Ottawa LPP, which is delivered only in French and which has a mandate “to promote access to justice for francophones and other marginalized groups by training future lawyers to provide high quality legal services in French.” The program is small (only 19 people are enrolled) and, thus, any statistical information gathered must be taken with a grain of salt. That said, it’s hard not to be moved by the fact that 11 out of a total of 17 individuals that participated in the study (so, roughly 65%) identified themselves as being part of a “visible minority.” With regard to the much larger LPP program delivered by Ryerson University, there is currently no information publicly available about the demographics of participants although one assumes that such information is being collected by LSUC.
Based on this current (albeit incomplete) information, there seems to be good reason to worry that we do have an “articling crisis” on our hands but perhaps not of the sort originally envisioned.
For its part, LSUC has advised that it has “developed an evaluation framework for the LPP as part of the Pathways to the Profession Pilot Project in which the results and impressions of all candidates, with specific interaction with racialized candidates, in both experiential streams of the licensing process (LPP and Articling) will be obtained and reviewed for the purpose of determining next steps upon completion of the pilot.”
In the immediate term, it falls to the law firms participating in recruiting to take seriously the risk and reality of discrimination in the articling process. This is, no doubt, the type of issue that belies a quick fix. This does not mean, however, that firms should sit on their hands. There are some immediate measures that can be taken – a few are mentioned in the CBA’s Ethical Practices Self-Evaluation Tool including having interviewers and lawyers who make hiring decisions receive training on gender and racial stereotypes and the role of unconscious bias in hiring decisions; using written interviewing guidelines; having an employment equity and diversity hiring policy in place and regularly measuring diversity performance within the firm. To be sure, measures of this nature are no panacea. Doing nothing, however, is not a legitimate option.
It’s never been conscionable to ignore the racism that exists in the legal profession. Hopefully, with the release of this Consultation Paper and its blunt revelations, it is also no longer possible to turn a blind eye.