An amended Rules of Professional Conduct was just one of 13 recommendations delivered by the Law Society of Ontario in a lengthy report designed to address issues of long-standing systemic discrimination in the legal system.
Entitled Working Together for Change: Strategies to address issues of systemic racism in the legal professions, the report was approved at the law society’s December 2016 Convocation. It was the result of four years of consultation and research by the Challenges Faced by Racialized Licensees Working Group. The group found that racialized lawyer licensees (those who are outside the dominant white culture) faced a variety of professional barriers to growth.
The report outlined five action areas: accelerating a culture shift; measuring progress; educating for change; implementing supports; and leading by example. As well, additional work was being considered for overhauling the law society’s racial discrimination complaints system.
The report’s consultative process was seen by the Law Society of Ontario as an opportunity to develop a positive change strategy, given that racialized lawyers had dealt with barriers within the profession for years. The group identified challenges involving entry into the practice of law and advancement within law firms, the challenges racialized lawyers faced that might increase the risk of complaints or discipline, best practices to support racialized lawyers in all areas, and the development of measurable, accountable strategies.
According to working group co-chair Raj Anand, a partner at WeirFoulds LLP, the need to create the report had been a focal point since the mid-1990s.
“The change of the legal profession in makeup has taken place in the last 20 years, with a lot of anecdotal evidence of racism, individual and systemic, and individual incidents and individual concerns,” said Anand. “We must root out systemic barriers and create lasting change by adopting a tool box for the professions that will promote equal recognition and respect for all of our members.”
The working group engaged with more than 1,000 lawyers, law students, paralegals, articling students and members of the public, both racialized and non-racialized, and received written input from 45 organizations and individuals. Evidence drawn from the group’s work included qualitative examples of stereotyping, a lack of mentors, the challenge of negotiating the culture of law firms, and fitting into the workplace. There was extensive evidence that intersectional issues also created complications through overlapping biases involving race, disability, sexual orientation, race, and gender identity.
Arleen Huggins, immediate Past President and Chair of the Advocacy Committee for the Canadian Association of Black Lawyers (CABL), and a partner at Koskie Minsky LLP, said her organization provided the working group with initial guidance as well as submissions and association representatives for interviews. She said the recommendations are a minimum first step in making change happen.
“The legal profession in my view suffers from systemic issues which create barriers for many racialized/equity seeking law students and lawyers, and is lagging behind on proactively addressing equity and diversity issues,” said Huggins in an email interview. “I believe that the mobilization of the (law society) has come more from our increasingly diverse demographics within Canada and especially within Ontario, and from organizations such as CABL.”
The Roundtable of Diversity Association (of which CABL is a member) had lobbied the law association “for some years now to introduce measures to move the legal profession to become more diverse and more reflective of the diversity of the general population,” Huggins said.
Anand, who was chief commissioner of the Ontario Human Rights Commission in the late 1980s, said it was “time to devote time and resources to see if the anecdotal evidence was borne out … and to determine what if anything the law society should do.” The resulting report is “about ethics, professionalism, fairness and mutual respect. Our working group came about as a result of longstanding concerns and anecdotal evidence of discrimination in our professions (and) our law society accepted its responsibility and undertook to get to the bottom of this issue.”
The report was an unprecedented look at issues regarding Ontario’s diverse legal system and “other provinces have not delved into it the way we have,” added Anand. “In terms of the final recommendations, nothing we proposed was radical. These were proactive approaches and arbitrators have been looking at these for the last 15 to 20 years. We have a lot of ‘inside the beltway’ issues to deal with, apart from the broader societal issue of systemic discrimination.”
Some cynicism as to whether the recommendations had the necessary ‘teeth’ to make new guidelines stick was expected, said Anand. “There was concern that it would be a lot of talk and no action.”
Not too surprisingly, racialized professionals tended to push harder for action to hold the industry accountable, with more data collected and stronger penalties, while the “non-racialized majority tended to take approach that it should be voluntary,” said Anand. “For me, having done human rights work, these were familiar issues. We adopted what were fair best practices, and typical of what you would do in large organizations to attack the issues.”
Huggins said resistance to change from lawyers in the mainstream was anticipated. “We have already heard of law firms/lawyers who believe the recommendations go too far in ‘mandating’ their practices … to effect change, these steps are critical and arguably don’t go far enough (CABL and other equity seeking legal organizations lobbied for mandatory aggregate data collection within law firms and legal organizations) to rectify a systemic imbalance in opportunity which has existed in the legal profession for a long time.”
Overall, Anand anticipated long-term positive outcomes. “Good human rights is good business. This is a win-win-win proposition, as law firms benefit from diversity in terms of marketing, attracting clients and getting the best work out.”
The report will have significant influence in Ontario legal firms, and “I expect it will have influence in the provinces in which diversity is more marked,” said Anand. “We need to facilitate culture change, to signal the importance of an even playing field, to infuse equality and inclusion in our work as professionals,” and it is likely that as more law students and new lawyers and paralegals become aware of the law society’s approach, it will help to better foster a long-term culture of inclusiveness.
Recommendations of Working Together for Change: Strategies to address issues of systemic racism in the legal professions (several of these recommendations apply to law firms with more than 25 employees):
- Reinforcing professional obligations: review and amend the Rules of Professional Conduct, the Paralegal Rules of Conduct, and Commentaries to reinforce professional obligations to recognize, acknowledge and promote equality, diversity and inclusion consistent with human rights legislation
- Diversity and inclusion project: work to develop model policies and resources to address challenges
- Adoption of equality, diversity and inclusion principles and practices: ensure compliance by lawyer to adopt and abide by principles acknowledging the obligation to promote equality, diversity and inclusion; establish a workplace human rights/diversity policy; conduct a workplace self-assessment every two years
- Measure progress through quantitative analysis: Annual review, through the Law Society, of self-identification data in legal workplaces
- Measure progress through qualitative analysis: every four years, provision of answers to law society on the state of the legal workplace
- Inclusion index: a record of self-assessment information, demographic information and information drawn from the Law Society’s inclusion questions, published every four years
- Repetition of inclusion survey used in the project: Law Society will conduct ongoing inclusion surveys, every four years
- Progressive compliance: consideration of compliance measures for workplaces that fail to comply with the adoption of inclusion principles and practices
- Continue professional development: launch a three-hour accredited program that focuses on advancing inclusion in the legal professions, and provide assistance to workplaces in designing and delivering their own society-accredited programs
- Licensing process: include as part of the licensing process the topics of cultural competency, equality and inclusion as necessary competencies
- Build communities of support: provision of support to racialized lawyers who require networking and mentoring
- Address systemic discrimination complaints: review the Discrimination and Harassment Counsel Program, revise the rules of conduct where appropriate, and create effective ways to address complaints of systemic discrimination
- Lead by example: continue monitoring and assessing internal policies and practices to promote diversity, inclusion and equality in the workplace.