‘If Not Us, Who? if Not Now, When?’: Reflections on the Law Society’s Challenges Faced by Racialized Licensees Working Group Report

The Law Society debate, set for December 2, 2016, is the most significant acknowledgment of the obligation to address issues of systemic racism within the Ontario legal profession to date. It is a call to action. The Law Society’s commitment is anchored in its 1997 Bicentennial Report and the Report of the Bicentennial Working Group. Much has changed since the Law Society’s largely unimplemented response of 1999 to the Canadian Bar Association Recommendations flowing from the Report on Racial Equality and my own complementary Virtual Justice Systemic Racism in the Canadian Legal Profession Report. In the intervening two decades, the Law Society has begun to acknowledge its obligations to licensees from equality-seeking communities. It has begun a long overdue engagement and recognition of Canada’s tri-juridical nature in its evolving strategy to address Indigenous legal professionals and the distinctive needs of their communities within our diverse public. The 2008 Retention of Women in the Legal Profession reflects its recognition that properly resourced sustainable strategies are required to bring about change. These activities set the context and expectation for current discussions.

I have not been privy to any conversations that would suggest that the Law Society Convocation of 2016 would abandon its obligation to respond to racialized licensees by rejecting the Challenges Faced by Racialized Licensees Working Group Report. As a result, I have been disturbed by the reluctance of some to engage in a robust discussion of whether the Challenges Report is sufficiently responsive to the needs of racialized licensees. Some licensees have mentioned self-censoring their criticism out of the fear that it would ”kill the report” and deny them the limited benefits it contains.

Fear driven self-censorship is compounded by a belief that acquiescence to an imperfect report now creates a stepping-stone to ongoing anti-discrimination work focussed solely on racialized licensees. In my view, that position is naïve. There are other equality-seeking communities including persons with disabilities, young professionals, linguistic minorities and the “greying” bar who are both entitled to, and in need of, at least, fair hiring and promotion policies within firms and/or inclusion in data-gathering to support any further initiatives. It is reasonable to expect that a four-year investment on racialized licensees would give way to a recognition that the recommendations that have been made for racialized lawyers would benefit other equality-seeking groups and that strategic engagement with implementation of at least some of the recommendations for all other equality-seeking communities would be helpful. This makes it imperative that the Challenges Report debate ‘gets it right the first time.’

Critical areas of concern in the current report 

The report concentrates on well-established human rights practices to address systemic discrimination. I am of the view that effective implementation of the report requires entity regulation. Some of my colleagues disagree but we are united in a view that law firm accountability is required to effectively achieve equality for racialized licensees.

The current Challenges Report echoes the Law Society’s public support for the CBA recommendations of 1999 regarding model policies for articling interviews, complaints processes for discrimination, workplace equity data, training for law firms, dialogue with racialized communities and continuing legal education. Early controversies about demographic data have given way to what is now an uncontroverted foundation of solid employment equity practice. The Challenges Report recommendations in this area build upon the Law Society’s ongoing practice of requesting demographic data on the licensees’ annual reports (LAR) and routinely incorporating quantitative and qualitative data in its equity policy making processes.

The Challenges Report calls for a mandatory declaration of anti-discriminatory principles by all members of the profession. This is not a deal breaker for me. However, The Code of Professional Conduct and The Paralegal Code of Conduct are the more appropriate mechanisms to address the issue of the proposed personal statement mandated in the current recommendations. We do not require distinct declarations for the range of non-negotiable ethical obligations that all licensees are required to meet. I would substitute a requirement that all firms, regardless of size, should be required to develop a diversity strategy which would be publicly available including being posted on the firm website. This could be expanded to requiring filing in a searchable database maintained by the Law Society available to the public. I would also recommend that the equivalent of the declaration be incorporated in all retainer agreements.

I support the recommendation for quantitative analyses. The results for firms over 25 should be published in an aggregate manner annually so that there is a clear snapshot of the profession. Consideration should be given to having a voluntary reporting public release system such as that supported by the New York Bar. A demographic report such as that of the model implemented by the Minority Corporate Counsel Association, encompassing all equality-seeking communities across regions and practice areas would be a powerful human resources and policy-making tool. The recommendations should direct the Law Society to set the standards for the data gathered from the LAR and the survey instruments used by firms to ensure comparability of data.

Accurate qualitative analyses, such as the inclusion surveys proposed in the report, are essential complements to successful anti-discrimination strategies. Lack of confidence in the administration of, or disclosure of, sensitive information can encourage non-participation or inaccurate responses. To ensure the needed levels of confidence, surveys should be conducted through an arm’s length entity.

To complement the gathering of data, the role, and staffing, of the Discrimination and Harassment Counsel (DHC) should be expanded to:

(a) administer and advise firm administrators and participants regarding the inclusion surveys;

(b) develop and support those using the self-assessment instruments;

(c) analyze data arising from the inclusion surveys and provide an annual report for publication to the profession reflecting the results; and,

(d) supplement the inclusion surveys with voluntary exit interviews that provide participants with the option either to share interview results with the law firm or to contribute the results to a bank of information to be maintained and collated into anonymized reports.

I have unqualified support for the need for qualitative inclusion surveys regarding experiences of racism and other forms of discrimination in legal workplaces. As noted above, I believe that exit surveys are an essential complementary tool. The Challenges Report must clearly set out principles to ensure that vulnerable individuals are protected from disclosure of this information to their employers. After the fact remedies regarding reprisal would be wholly inadequate.

The report recommends developing effective methods to resolve complaints about systemic discrimination. The specialized team approach within the Professional Regulation Department would not remove the need for all investigative staff and legal counsel to have baseline training on recognizing racism and systemic discrimination. The discipline process will benefit from their ability to better conduct investigations and identify when a matter should go to the special team.

I am not supportive of transforming the DHC, safe counsel role, into a hybrid role that would involve participation in the disciplinary process by way of initiating or participating in complaints of systemic discrimination. This would erode the core mandate of the office and create a crisis of confidence in its clients. As it presently stands the DHC ensures confidentiality and states, “Although the Program is funded by the Law Society of Upper Canada, the DHC works independently from the Law Society in a separate office in which all information received is kept in strict confidence.” [Emphasis added]

Training directed at transforming law firm culture is essential. The creation of a two-tiered licensing process masks when racism results in the exclusion of meritorious candidates and adversely affects their professional development. Training that focuses on building the skills to avoid discriminatory behaviours specifically targeting law firm human resources practices is imperative. The Challenges Report is vague on what constitutes effective training or CPD. It also fails to provide direction on how to address the range of ways in which existing competence could be demonstrated without incurring needless expenditure or repetitive training. At the same time, the development of competence in serving a diverse public that includes racialized and Aboriginal communities should be equally valued as a core competence.

Missed Opportunities

The report is silent on the various ways that economic vulnerability disproportionately affects racialized lawyers throughout their professional lives. High law school debt burdens those faced with additional costs from the licensing process. The report ought to have critiqued the funding model for the LPP/PPD that relies on student contributions while disregarding systemic inequalities that affect their capacity to pay. In the present model, the majority (some may be articling for free or below minimum wage) are being asked to subsidize a minority of their peers. Both the LPP/PPD and the traditional articling stream have candidates from equality-seeking communities. Debt cannot be blamed only on a lack of personal financial literacy. Access to family financial support, OSAP restrictions and lack of access to private loans, all contribute to crushing debt burdens. Sensitivity to these issues ought to have resulted in recommendations for the Law Society to:

(a) support student advocacy with OSAP to extend its benefits into the articling process;

(b) increase bursary support for students during the licensing process; and

(c) develop criteria for a loan forgiveness system based on factors such as employment in identified under-served regions or equity-related areas of practice.

It is a sad, truth that all those facing huge debt loads coming out of law school, including many racialized lawyers, never recover from this economic impairment. Acknowledging this reality is the first step towards identifying concrete steps to uplift our colleagues.

The firm-size demographic for all lawyers and even more disproportionally for racialized lawyers is sole/small firms. (For paralegal licensees, the statistic skews even further towards sole/small firms.) Yet, the report focuses on remedies related to firms of over 25 licensees. Proactive supports directly addressing the current needs of racialized licensees are woefully absent. Considerations should have been given to

(a) identifying strategies to address the ongoing economic barriers that result in racialized licensees beginning their legal careers with under-capitalized and administratively under-supported practices;

(b) directing the Law Society Soles/Smalls and Practice Advisory initiatives to further develop supports specifically responsive to these communities; and

(c) expanding coach/advisor services to include networking and practice development strategies and activities specific to these communities.

Another area that is under-explored is whether Law Society initiatives in this area need to explore culturally specific understandings of coaching/mentoring that may inhibit the participation of racialized licensees from some communities.

The way intersectionality or identifying with multiple equality-seeking communities can give rise to compounded experiences of discrimination, is absent from the recommendations. This could easily be remedied by extending all data collection requirements to all equality-seeking groups. It fails to recognize that racialized licensees sit at the intersection of a number of communities, included but not limited to, linguistic minorities, gender, sexual identities, disability amongst others. The report is silent on the unique needs of racialized internationally trained lawyers without Canadian education or experience, including those who choose for a variety of reasons to become paralegals once in Canada. Recommendations for bridging programs that would provide necessary experience tailored to their needs are notably absent.

The Law Society has quite rightly been seen as a leader following the implementation of its Retention of Women strategy. However, a quick perusal of the website shows no follow-up research since 2013. There has been no report indicating whether the voluntary initiatives undertaken to retain women have been successful. Racialized and Aboriginal women continue to experience significant issues that merit ongoing research and longitudinal studies. This is even more important given the shifting law school demographic resulting in women being an ever-increasing percentage of the legal profession. At a minimum, there should have been a recommendation to ensure that all future work in the area of gender by the Law Society gives specific and explicit attention to racialized and Aboriginal women.

The Challenges Report should call upon the Law Society to work together with Roundtable of Diversity Associations and other associations serving racialized lawyers across Ontario using the multi-focal approach of the TAG (The Action Group on Access to Justice). As it presently stands, Convocation and its many equity related activities are Toronto-centric in location, voice and analysis of the problem. The investment in structural support and resources is far less than the Society’s commitment to access to justice. This is ironic since licensees with diverse cultural experiences are fundamental to achieving social justice within our legal system and the broader society.

The legal profession has a heightened awareness of issues of mental health. Ignoring the role of racism in worsening or causing mental illness, points to the underlying failure to address the realities of racism in legal workplaces. Experiencing everyday microaggressions, being the subject of direct racism, absorbing injustices in silence – all take a toll that cannot simply be masked by individualized terms such as stress, depression etc. The Challenges Report missed the opportunity to build on the Law Society’s mental health initiatives by recommending strategies specific to racialized licensees. The report ought to include a recommendation that the profession’s designated health care provider (Homewood Health) develop the necessary staffing and substantive expertise to address these concerns as part of a comprehensive mental health support strategy to racialized licensees.

Final Thoughts

Progress on the recommendations requires vigilance. The Law Society should be tasked with compiling an annual report card as part of its annual report as well as a biennial report to Convocation with a substantive review of efforts to date. In contrast to the recommended Bencher committee, I would suggest a committee involving Benchers, key senior Law Society staff and representatives from Equity Advisory Group/Roundtable of Diversity Associations to ensure a diversity of perspectives.

The Challenges Faced by Racialized Licensees Working Group Report catalyzes an absolutely essential course of action for the Law Society. The lived reality for many racialized licensees is far removed from the aspirational values espoused in the Rules of Professional Conduct. It is my expectation and understanding that my colleagues in Convocation will rise to the occasion and embrace recommendations that will ensure that all members of the profession are held accountable for their discriminatory behaviours. The observations are worthy of consideration as complementary amendments to the Challenges Report. Responding to these issues by expanding the scope and nuance of the recommendations would bring us much closer to realizing equality for all racialized licensees.

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 Joanne St. Lewis is an Assistant Professor in the Common Law Section of the University of Ottawa’s Faculty of Law. You can find her on Twitter @firing_control or by email at joanne.stlewis@uottawa.ca