Equality, Diversity, and Inclusion Are Components of Competence
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.
[emphasis added]
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.
If anyone needs a reminder, here is what the Supreme Court of Canada said this year in Green v. Law Society of Manitoba about the ability of law societies to impose mandatory CPD on licensees,
[3] 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.
Omar,
The LSUC has systematically refused to answer this question, but since you repeat the claim, maybe you can answer. What is the source for the claim that licensees have an obligation to “promote equality, diversity and inclusion, generally”.
I note that no such duty is contained in the Ontario Human Rights Code. Indeed, both the text, context and purpose of the OHRC believes the existence of such a general obligaiton. It imposes narrow obligations of non-discrimination in the context of, inter alia, employment, services, accomodation, etc. – the existence of these express duties, implies the absence of such a duty in situations which are not expressly set out. Moreover, the OHRC code expressly sets out a host of exceptions to even those specific duties (e.g., section 18 of the code, and section 24).
Nor is such an obligation contained in the Rules of Professional Conduct. The word inclusion doesn’t appear in the Rules, equality is only discussed in the context of employment – which simply reiterates our obligations as lawyers under the OHRC. And the word diversity is used only in respect of our obligation to recognize (not promote) it, and again, in the context of our statutory obligation not to discriminate.
Now, you may be more familiar with these rules than I am, but can you point to any specific legislation or caselaw which identifies an obligation on private persons to “promote equality, diversity and inclusion generally”? Because unless you can, the claim that these “reflect consensus principles found in human rights adopted throughout our courts and tribunal” is unfounded.
Indeed, the fact that you rely on section 15 caselaw to buttress your case reinforces my point. Governments do have a duty to treat people equality – an express duty found in secction 15 of the Charter. But lawyers are not government agents, section 15 does not apply to them.
Moreover, it’s interesting that you raise the TWU case. If lawyers have a duty to promote equality, diversity and inclusion, does that mean they cannot represent clients who engage in discriminatory behaviour (even if it is legally permitted)? How can I, as a member of the Law Society, in good conscience recignize such an obligation. And there’s a dark irony in the LSUC fighting with TWU, while trying to impose a value based “community covenant” on its members.
Now, if you want to change the rules of professional conduct to impose an express obligation to promote equality, diversity and inclusion. That’s fine, let’s do so. Let’s have a debate as to what that obligation means and whether or not it’s a good idea. But let’s not try to compel lawyers to acknowledge an obligation that doesn’t exist.
Best Regards
Bob,
The origin of the obligation is the adoption of Recommendation 3(1) in the Challenges Faced by Racialized Licensees Working Group’s Final Report. The law society has been rather clear about the source of this in their related documents.
A significant part of the templates provided by the law society refer explicitly to the workplace content. In other words, these were already obligations that all employers (and employees) had to abide by under the Human Rights Code regardless.
These obligations can also be found in the Rules of Professional Conduct, specifically in Rules 6.3 and 6.3.1, which I refer to in the piece above. Rule 6.3.1-1 states,
The contents of that special responsibility can be found in the commentary to the Rule,
Yes, lawyers not only have to abide by human rights legislation and Bills 164 and 132 relating to sexual harassment when they hire or exert administrative control over others, but have a broader duty beyond this that transcends the obligations that other employers may have in the workplace. Where the Statement of Principles goes beyond the Code is in the obligation to promote equality, diversity and inclusion, generally. This can perhaps be best understood by reviewing Rule 5.6-1,
The commentary to this Rule states,
A “community covenant” that enforces Charter-based principles for a self-regulated legal profession, who is central to the administration and implementation of those constitutional principles, is very different than a covenant that appears to clearly violate it while still attempting to gain automatic (not individual-based) admission to that same profession.
The connection between these existing duties and the new Statement of Principles can also be gleaned from one of the templates provided by the law society in the preamble,
In fact, Section 2.03, Paralegal Rules of Conduct and ss. 6.3 and 6.3.1, Rules of Professional Conduct, are explicitly referenced here as the source of this special duty.
Lawyers represent all types of people, including rapists, murderers, and even white collar criminals who consider diversity and inclusiveness to be nothing more than political correctness. We can represent people who engage in discriminatory behaviour, and in fact have a professional obligation to do so. That does not mean that the conduct of our clients is necessarily acceptable as conduct for a licensee.
The obligation exists. A declaration appears particularly warranted given the backlash, especially when lawyers continue to appear oblivious about their existing obligations, which preceded this initiative.
Omar,
You said:
“The origin of the obligation is the adoption of Recommendation 3(1) in the Challenges Faced by Racialized Licensees Working Group’s Final Report. The law society has been rather clear about the source of this in their related documents.”
First, I note that RECOMMENDATION (capitalization for emphasis, not shouting) 3(1) only deals with the obligation to prepare a statement of principles, it does no give rise to the underlying obligation to “promote equality, diversity and inclusion generally”. So, that is not the source of the purported obligation to “promote equality, diversity and inclusion generally” (and, since when are recommendations rules? Indeed, I’ll have to check the caselaw, but if that’s the basis for imposed speech, then it can’t be justified by section 1, since it’s not “prescribed by law”).
Second, the LSUC has not been clear about their source of this in their documentation – if they were, no doubt both they and you would be able to give me a clear legal basis for this obligation. Heck, if they were, I’d be able to figure it out myself. You haven’t and neither have the LSUC. Their failure to do so, in spite of repeated requests on my part suggests rather strongly that they simply can’t answer the question.
Second, with respect to the proposition that lawyers have a duty to promote equality broadly, the Rules simply don’t say that. There is nothing in the rule that says that, you can’t point to anthing in the Rules that say that. The proposition that lawyers have a general duty to promote equality, diversity and inclusion is a very general obligation – you simply can’t read into vague and general language such a broad positive obligation on the parts of lawyers.
And, consider the implications of they did? Could a lawyer then, in his or her private capacity, advocate against gay marriage? Is that consistent with a duty to “promote equality”? Can they oppose affirmative action? Can they participate in panels on why hate speech should not be criminalized? Can a lawyer engage in discrimination that is permitted under section 18 or 24 of the OHRC? Can a lawyer assist in violating section 15 of the Charter, where such a violation can be justified under section 1 (or under the NWC?)?
What is the content of this purported duty. Is it to not make racist or sexist jokes – the example in your article – OK, but that’s an explicit obligation in the Rules, indeed, one probably founded in legal obligations under the OHRC regarding employment and services. Can you give an example of conduct that, in your view, violates this purported obligation which is not found in explicitly in the OHRC or the Rules?
Now, if you want to amend the rules to impose such an obligation, fine – at least we have a source of law that we can debate, but that hasn’t been done yet. Perhaps we could provide some guidance as to what these obligations actually mean – so that there is clarity that the concerns I identify in the preceding paragraph will not arise. But that need’s to be done before you can say an obligation exists. Indeed, it’s telling that the Racialized Licensee Working group report recommended, as necessary, amendments to the Rules to “reinforce” this obligation – I read that as a subtle admission that the obligation is not there. It’s a common tactic for legislators to claim that their substantive amendments to legislation is just “clarifying” existing obligations – the courts seldom give those claims much weight. I wouldn’t expect that the Rules would be interpreted differently.
The obligation doesn’t exist, the Working Group’s recommendation that they be amended is an acknowledgment of that. If critics are “oblivious about their existing obligations” it may be because proponents like you are wholly unable to identify or define those obligations. Or it may be because proponents, like you, are oblivious about the existing obligations.
For lawyers, the nearest rules may be 2.1-1, 6.3.1, and 2.1-2. The first two are “mere” obligations to comply with existing obligations, with commentaries referring to legislation of general importance. The commentary to the third suggests that the rule is about “should”, rather than “must actively”, because it’s about voluntary activity. As Omar points out, rule 5.6.1 highlights why lawyers must look at this carefully.
For paralegals, the closest rules might be 2.03 (again, “just” a rule-to follow existing obligations), and 6.01(1), though the content of what it means to “try to improve the administration of justice”, is something about which reasonable advocates might debate.
Perhaps what troubles some people is the process by which the “new” obligations are being promulgated?
The Law Society’s board of directors adopted a number of “Recommendations”.
The first, “Recommendation 1 – Reinforcing Professional Obligations” is that “The Law Society will review and amend, where appropriate, the Rules of Professional Conduct, the Paralegal Rules of Conduct, and Commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal and paralegal professions.”
“Recommendation 1” hasn’t been implemented yet, however, it appears to be the key the source of the word “promote”, which is a focus of attention paid to this issue.
Instead, the overview about the now-required Statement of Principles on the Law Society’s website refers only to “Recommendation 3 – The Adoption of Equality, Diversity and Inclusion Principles and Practices”. This says that the Law Society will: “require every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”. On point, sure, but the substance of “Recommendation 3”, and its place after “Recommendation 1”, makes its wording a call-back, and makes it seem like part of the implementation of and reinforcement of “Recommendation 1”.
Is this perhaps the difficulty, then: Moving ahead in 2017 with “Recommendation 3” before tackling “Recommendation 1”?
According to the reports considered by the Law Society’s board of directors, “Recommendation 1” is not set for implementation for years to come, not until perhaps 2020.
It’s also somewhat problematic that the requirement set out by the LSUC isn’t consistent with, and goes beyond, recommendation 1 in the Working Group Report.
The Working Group Report did not identify an obligation to promote equality, diversity and inclusion generally, rather it provides:
“The Working Group recommends that in order to ensure that licensees infuse the principles of equality, diversity and inclusion INTO THEIR EVERYDAY PRACTICE, the Rules of Professional Conduct, the Paralegal Rules of Conduct and/or the Commentaries be reviewed to determine how this objective can be advanced”[emphasis added].
Now, the obvious point is that this a far narrower recommendation than the establishment of a duty to promote equality, diversity and inclusion generally. In this respect, Recommendation 3 is a poorly drafted, as it suggests the existence of general obligation when, in fact, what is proposed is an obligation in their everyday practice.
Again, perhaps if the LSUC actual amended the Rules to clarify what this obligation is and how it’s defined, we could come to some common ground on this. They haven’t.
Oh, the irony! Let’s wax philosophical about how important it is to safeguard inclusion and diversity in Canada while encouraging LSUC’s attempt to stamp out the most important kind of diversity of all… ideological diversity.
Bob,
That is simply not correct. The recommendation is direction from the Report, as follows:
It’s strange that you would attempt to limit the law society to the first of the recommendations, not the entirety of the report. I don’t think you’re contesting that obligation is synonymous in this context with a duty.
The law society has been very clear in this, especially in the linked materials. It may require some time to review them in their entirety, but they are there.
Not only is this well grounded in the Report made by the Working Group, it is firmly grounded in the Rules, as well as the statutory authority provided to them by the legislature.
This is not, as J. Singh suggests, an attempt to stamp out ideological diversity. As I touch on above, the concepts of analogous grounds under equality is well litigated and disputed. Diversity as a concept is built directly into s. 15. And we can continue to discuss what the best ways are to create inclusion. All of that is indeed ideological diversity.
The only thing this has really done is reaffirm what the structure should be for such debates. In other words, the statement requires lawyers to recognize their obligation to uphold these values, not to necessarily agree with them, or agree that they should uphold them. That is not compelled belief, and to the extent that it’s compelled expression it’s comparable to regulations on advertising. Again, there’s nothing really new here, it’s all very well grounded in a long line of jurisprudence.
The aspects that may give rise to future questions are where lawyers openly promote hatred or bigotry, and what that means for conduct unbecoming. However, that disciplinary aspect will have very little to do with the Statement of Principles and will instead be grounded in the exist (or perhaps future) Rules.
The only thing truly new here is the shock and amazement expressed by some licensees about these obligations, which again only reaffirms the necessity of this step by the law society.
Omar:
I completely agree. As the Law Society has indicated, in the documentation accompanying the recommendation as well as the legal opinion that accompanied the report to Convocation, the duty to promote equality, diversity and inclusiveness — not only in our legal practices, but also in our public lives — is implicit in the existing rules and obligations governing licensees, and not a new obligation.
As a recent and unfortunate example, we recently observed a number of lawyers, i.e. the five Conservative federal MPs who are lawyers in Ontario, along with Liberal MP Gagan Sikand, fail in their duty to promote equality, diversity and inclusiveness in their public life by voting against or abstaining from voting in favour of M-103, a a non-binding parliamentary motion condemning Islamophobia and religious discrimination, thereby undermining public trust and confidence in the legal profession.
As public positions like these, which are viewed by various groups in society as discriminatory or hateful, are potentially not only contrary to the Statement of Principles that lawyers will be required to adopt, but also a breach of their existing obligations under the Rules of Professional Conduct, the Law Society should immediately take steps to investigate and, if necessary, publicly censure the lawyers cited above for their failure to advance the administration of justice by joining other MPs of good will in voting to condemn the hateful acts of certain members of the public. Should they fail to respond to the Law Society and undertake to correct their behaviour in the future, the Law Society can then engage in progressive discipline to ensure that our lawyer-parliamentarians are aware that if they fail in their obligation to promote inclusiveness, they will also risk their post-political livelihoods. Lest you think I am focusing solely on Conservatives, one might also imagine left-wing lawyers publicly supporting the Boycott, Divestment and Sactions (BDS) campaign that is viewed by some as anti-Semitic and who therefore might also be considered to be in breach of their professional obligations.
Moreover, this could also be an appropriate test case for the Supreme Court to clarify that the principles set out in National Bank of Canada v. RCIU (the case cited by the hyperbolic Bruce Pardy) do not apply to lawyers, either in their personal or professional capacities, and that Lavigne and Green together stand for the principle that not only is there no right “not to associate” in Canadian law, there is also no right “not to speak” when it comes to lawyers, contrary to the misapprehension of those who are shocked and amazed that the Law Society can require them to adopt a “Statement of Principles” that will, as the supporting legal opinion points out, make their “generic human rights obligations” more “personal…tangible…and readily accessible.”
I do, however, have a couple of slight quibbles with your argument:
1. While you state that the only consequence of failing to adopt a Statement of Principles is that licensees will be advised of their obligation in writing, this is only the immediate, short-term impact, and not the more effective long term goal of the working group’s recommendations. In fact, page 39 of the report states, “The Working Group recommends that the Law Society take a progressive compliance approach with legal workplaces that do not meet the requirements outlined in [Recommendation 3]. The Working Group envisions a gradation of responses, beginning with remedial approaches, such as meeting with representatives of legal workplaces to discuss concerns with their policies and/or practices, to disciplinary approaches if there is deliberate non-compliance with requirements, despite multiple warnings, or no efforts are made to address systemic barriers.” (emphasis added)
2. It is somewhat odd that you would argue that compelling licensees to adopt a “Statement of Principles” does not compel belief, or that the Statement of Principles is non-specific as to content. The language of “principles” as opposed to “policy” or “practice” clearly suggests belief rather than conduct, and the upcoming educational (CPD) requirements, on equality, diversity and “inclusion” (the latter being a term that is undefined in the case law but which has variously been defined by the Working Group (in the report) as “making a better space for everyone” and (on the definitions website) with reference to RBC’s corporate policy — which we can celebrate as the first time that a corporation’s principles have been incorporated by reference into legal requirements! — as “valuing”, “accepting” and “embracing” individuals are obviously intended to shift thinking as a prerequisite for changing behaviour. However, if you accept that National Bank of Canada v. RCIU does not apply to lawyers, there is no need to soft-sell the Statement of Principles as a requirement that does not compel belief or agreement.
P.S. Apologies for the pseudonymous post. Sadly, there are a lot of bigots out there that object to even the most reasonable controls or, in this case, positive requirements, established by governing authorities on what they say and think. It’s unfortunate that, even lawyers who otherwise freely embrace and individually rejoice in the value of equality, diversity and inclusion, are such donkeys that they will resist, even at risk of sanction, the requirement to participate with other lawyers in a collective hymn to those values.
J Swift,
Thank you for writing in, but we do need lawyers to stand behind their comments, especially on issues like this.
I focused on the Statement of Principles, because that has been the major focus of commentators and of the motion introduced yesterday by Joseph Groia for the Dec. 1, 2017 Convocation.
The only consequence of non-compliance with the Statement itself is a reminder. However, you’re entirely correct that the Statement is part of a larger EDI initiatives underway by the law society.
There is a far stronger critique to be made (which has not yet happened) about the EDI program as a whole. For example, what will the contents of the CPD related to the Statement of Principles entail? It’s only when the Statement is looked at in conjunction with any subsequent materials or initiatives that any content to expression is actually engaged. The Statement itself is rather benign.
As I’ve touched on already, there is a wide range of perspectives as to what equality should consist of, how much and types of diversity are appropriate, and the best means to achieve inclusion. Diversity arguably can include diversity of perspectives. However, when elements of ideological diversity result in the exclusion of diverse individuals from positions of leadership in law, the latter will always take the priority. Human rights is always more focused on the impact on the individual than the abstract or purely theoretical idea.
It’s where the EDI initiatives do involve discipline, such as the parts you refer to, that greater opposition could potential be mounted, with a stronger legal justification. However, that’s not the Statement of Principles. More importantly, the reference you highlight refers to legal workplaces, not the individual licensees who would be signing the Statement of Principles. In other words, this would be for a collective of licensees who have repeatedly refused to comply with a number of the other initiatives that are focused on systemic discrimination in the workplace.
The Working Group understandably did address concerns about any discipline that could be imposed as a result of this initiative,
As stated, the intended approach by the law society here is remedial, and not punitive.
Of course, aside from the professional obligations in place in respect to these responsibilities, there are existing responsibilities within this domain that apply to all employers, notably under the Human Rights Code, and Bills 168 and 132, amending the Occupational Health and Safety Act.
Maria Gergin of BLG explained these changes in The Globe last year,
If you think that a young lawyer, articling student, or support staff is going to readily file a complaint with the Ministry, or advance a complaint before the OHRT, then you’re sadly mistaken. I’ve handled over a dozen of these cases against law firms myself, and the power imbalances are tremendous. More than anything, these complainants are significantly concerned about the impact of these disputes on their future careers.
Lawyers are especially empowered in society, and unfortunately some of that empowerment leads to a culture of impunity, even towards other lawyers, those within a firm, or in society generally. In context of what many of us are calling widespread abuses, the place of regulator, the only legal authority that lawyers will actually respect, becomes that much more important.
In short, the detractors of EDI initiatives underway have jumped the gun. Their arguments are best saved for a later date, when actual ideological content is presented, and discipline is imposed. The Statement itself is not an “Orwellian dictate” that will result in a “a Law Society investigation and full hearing into my alleged unethical and unprofessional behaviour.”