A new law society requirement obliges legal professionals to adopt a statement of principles acknowledging their commitment to equality, diversity and inclusion. Heralded as a good first step to dealing with systemic racism in the profession, the new requirement is also accused of violating the right to freedom of expression.
Toronto Star reporter Jacques Gallant described the backlash against a new Law Society of Upper Canada rule requiring legal professionals to adopt a new statement of principles signalling their commitment to equality, diversity and inclusion. The law society contacted its 60,000 licensees in September to remind them of the new requirement to draft a statement (either their own or a Law Society template) which “acknowledges (their) obligation to promote equality, diversity and inclusion generally, and in (their) behaviour towards colleagues, employees, clients and the public.”
The statement of principles has been years in the making and flows from findings published regularly by the law society working group, Challenges Faced by Racialized Licensees, ever since its establishment in 2012. After consulting with hundreds of racialized licensees, the working group found that racialized legal professionals face a wide array of serious barriers including discrimination, stereotyping, a lack of mentoring opportunities, racist jokes, comments and assumptions, and a lack of opportunities for advancement. Among the thirteen recommendations brought forth by the working group, the statement of principles has garnered the most negative attention – even though all of the recommendations were accepted unanimously by the law society board in December 2016.
Critics of the statement (whom Gallant identifies as “mostly white men”) say requiring legal professionals to communicate their commitment to equality, diversity and inclusion is a violation of the right to freedom of expression and demands espousing a form of political ideology. However, licensees such as lawyer Tina Lie draw attention to equality, diversity and inclusion as crucial components of the administration of justice:
“People seem to consider the promotion of equality, diversity and inclusion as being an issue of political belief or political speech. I don’t see it that way,” said Tina Lie, a Toronto lawyer.
“I actually think it goes to the core of the administration of justice. If we want to improve the administration of justice, we absolutely need to advance the diversity goal that the law society has put out there. The reality is, when you look at it, the legal profession, the justice system and the judiciary, they don’t actually reflect the communities they are supposed to serve.”
(According to the law society’s 2014 snapshot of the legal profession in Ontario, 80.9% of lawyers are white, while white people make up 71.8% of the province’s population. By comparison, racialized lawyers represent 17.6% of the profession even though 26% of Ontarians come from racialized communities.)
Speaking to the Toronto Star, Raj Anand, a Toronto lawyer who co-chaired the working group and wrote the recommendation for the statement of principles, says both explicit and overt racism play a role in keeping racialized licensees away from the legal profession:
“I know an extremely smart, skilled lawyer who is a Muslim woman . . . She went to her first associate interview, and she was asked in the interview for hiring whether she advocated for the destruction of Israel. And she has never gone to a law firm again,” Anand said.
“That’s lost potential. Those are clients who aren’t served by a very good lawyer.”
Lawyer Anthony Morgan explains the statement is simply a confirmation of existing obligations licensees have when practicing their profession (licensees are required to respect human rights law and the Law Society’s Rules of Professional Conduct):
“It’s just an outward expression that I think is more about consciousness raising and moving the profession forward,” he said.
“One of the important things to consider in this, I think, is compare the difficulties of the experiences of racialized people on one hand, to the relative ease of making this statement about diversifying and supporting diverse colleagues in the profession. There’s simply no comparison.”
Critics of the statement worry that the new requirement will infringe upon their constitutional rights to freedom of expression. Gallant writes that Law Society board member and lawyer Joe Groia will put forth a motion at the next board meeting on December 1 on whether to allow legal professionals to opt out of the statement on “conscientious objector” grounds. Lakehead University law professor Ryan Alford has filed an injunction to halt the enforcement of the requirement in Ontario Superior Court.
Organizations such as the Canadian Association of Black Lawyers and the Indigenous Bar Association have sent letters pressing the law society to uphold the statement requirement.