Slouching towards Inclusion: the Law Society’s Statement of Principles

I have read with a mixture of interest and anxiety the various posts and ripostes on the Law Society’s communication to members regarding a requirement to submit a Statement of Principles to promote diversity and inclusion (further to the recommendations on the Challenges Faced by Racialized Licensees Working Group Final Report (December 2016), “Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions”). I participated in this Working Group process by providing this submission on the importance of obtaining data, among other goals, and believe the resulting Report represents a major step forward for the legal profession. The debate on the statement of principles, while heated, and at times uncomfortably divisive, has focused the attention of the legal profession on issues of equality, diversity and inclusion as never before. And that is, more or less, precisely the point of this exercise.

Where did this call for statements of principles by the Law Society come from? The Challenges Faced by Racialized Licensees Working Group Final Report includes a series of recommendations – Recommendation #3 states:

“The Law Society will:
1) 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;
2) require a licensee representative of each legal workplace of at least 10 licensees in Ontario to develop, implement and maintain a human rights/diversity policy for their legal workplace addressing at the very least fair recruitment, retention and advancement, which will be available to members of the professions and the public upon request;
3) require a licensee representative of each legal workplace of at least 10 licensees in Ontario to complete, every two years, an equality, diversity and inclusion self-assessment for their legal workplace, to be provided to the Law Society; and
4) encourage legal workplaces to conduct inclusion surveys by providing them with sample templates.”

The recent fracas surrounds an email sent by the Law Society in September, 2017, indicating: “You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.”

The resources made available to members include a template statement of principles which includes the following “preamble”:

“Human rights legislation is afforded quasi-Constitutional status by the Supreme Court of Canada. It is of such import that under the Rules of Professional Conduct (for lawyers) and the Paralegal Rules of Conduct, licensees of the Law Society of Upper Canada have a special duty to respect human rights in their dealings with others (s.2.03 of the Paralegal Rules of Conduct and ss.6.3 and 6.3.1 of the Rules of Professional Conduct for Lawyers).

I acknowledge that valuing equality and enhancing diversity and inclusion in my practice, at my legal workplace, and in my public life is central to the maintenance of public trust and confidence in the legal profession.”

With this context in mind, I have read and listened carefully to the supporters and objectors of the statement of principles (many of whom, on all sides, are people I know and respect). So, it is helpful to restate the banal but necessary disclaimer that this is an issue on which intelligent and thoughtful observers may (and do) disagree.

Lawyers already express an oath upon the Call to the Bar, which depending on its interpretation, already covers at least some of the commitment to principles of diversity and inclusion. Yet, if this additional requirement of acknowledging that enhancing diversity and inclusion in one’s practice amounts to nothing more than what is already in place, then it is not worth requiring more, and if in the alternative it connotes substnatially more, then this risks mandating that only one perspective on a complex matrix of equity issues is acceptable for all lawyers. The pathway out of this thicket, in my view, lies with the nature and rationale of the Working Group’s Report to begin with, which relates to combatting racism, marginalization and exclusion.

As has been noted by many observers, the requirement of a statement of principles does not require a particular statement of specified principles. It requires every lawyer to reflect on and convey a set of commitments which align with the goals of the Report and are meaningful to them. In his Globe and Mail op-ed, Art Cockfield questioned how a lawyer could represent someone advocating for Sharia law in light of such commitments. This herring is particularly red. A lawyer committed to diversity and inclusion can well indicate in her statement of principles that her understanding of inclusion includes a multitude of perspectives on inclusion, and this would certainly encompass different religious visions, minority viewpoints and even (and especially) unpopular approaches. I simply do not see a conflict between such a statement and the goals of the Report. Moreover, the Report speaks to how lawyers conduct their own practice, and public conduct, not who they choose to represent or how.

The point of the Law Society’s requirement is to require members to reflect on, engage and convey their ideas on promoting equality, diversity and inclusion, not to prescribe the outcome of that thinking, reflecting and discussion. This requirement does not come in a vacuum, but rather against a backdrop of a history of racism, marginalization and exclusion in the legal profession in Canada generally and Ontario specifically (set out in further detail in the Report). Determining how we each can and should advance goals of greater inclusion in the profession, it seems to me, necessarily entails an understanding of the historical context, the challenges faced by paralegals and lawyers today, and our shared ownership over the future of the profession. It is, at the end of the day, this process of reflection, engagement and dialogue itself that promotes inclusion and responds to the Working Group’s findings. It is for this reason, presumably, that the Law Society is not interested in vetting or approving the content per se. As the Report clarifies: “The Working Group believes that requiring licensees to make a clear commitment to equality, diversity and inclusion will encourage licensees to consider their individual roles in creating lasting change.” (at para. 44)

While, like many, I would have liked to see a more robust debate and discussion at the time this policy was in fact deliberated upon and approved by the Law Society Benchers (last December), the level of engagement now unfolding on issues of diversity and inclusion is noteworthy (and represents a glass more full than empty, in my view). It may be messy and a little fractious, but regardless of where you stand on the requirement of the Statement of Principles, there is little doubt as to what direction the arc of inclusion in the legal profession – and in Canadian society – is bending.