Voting for or Vetoing Diversity?

A statement on the LSO’s Statement ofPrinciples

SOLOMON MCKENZIE (3L)

OSGOODE HALL, THE HOME OF THE LAW SOCIETY OF ONTARIO. PHOTO CREDIT: KEVIN P. SIU, LICENSED UNDER CC BY-SA 4.0: HTTPS://COMMONS.WIKIMEDIA.ORG/WIKI/FILE:OSGOODE_HALL_2018.JPG.

Elections are currently afoot at the Law Society of Ontario (LSO). Lawyers and paralegals from across the Province will be going to the polls on April 30. In the process of this election, a subset of candidates are campaigning to reject the LSO’s diversity and inclusion targeted Statement of Principles (SOP). The vehement opposition to the SOP shines a light on the long distance our profession has to go before it can meaningfully deal with issues of systemic and interpersonal discrimination. However, these efforts also reinforce the importance of keeping our eyes trained on our regulator and engaged in our bencher elections.

I. Backgrounder: There’s An Election?!

What is a Bencher? The Law Society of Ontario sets policy that governs all lawyers and paralegals in Ontario. Benchers are the elected board of directors of the LSO. Through committee work and meetings, they set the policy and initiatives that shape and regulate our profession. Benchers also sit as adjudicators in discipline cases concerning professionals conduct, licensing, competence, and capacity.

Why should we care about elections? Law students cannot vote in the upcoming elections. However, we are extensively impacted by the LSO. Benchers have a huge amount of power to control the process of becoming accredited, the cost of joining the Society, and the bounds of acceptable conduct in the profession more widely. We have an evident and ongoing stake in the activities of the LSO.

Moreover, voter turnout for bencher elections is sufficiently low that convincing a couple of lawyers in our personal networks to vote could have significant impacts on the outcome of an election.

Where can I find out more about candidates? A list of candidates can be found on the LSO’s page by searching “Bencher 2019 Candidates.” The podcast “Of Counsel” has also been doing a series of excellent interviews with bencher candidates.

I would urge lawyers and paralegals going to polls in April to reject any candidate who decided to demonstrate their leadership qualities by decrying the need to think seriously about inclusion in our profession.

II. Election Drama: We’re still on our ABCs of Discrimination

What is the Statement of Principles? The Statement of Principles requires practitioners to create and abide by an individual statement of principles that acknowledges a practitioner’s obligation to promote equality, diversity, and inclusion generally, as well as in their behaviour directed towards colleagues, employees, clients, and the public. The LSO provides resources to help individual practitioners draft personal statements. The LSO’s example statements contain such inflammatory suggestions as asking lawyers to commit “to protect[ing] the dignity of all individuals, and to respect human rights laws in force in Ontario.”

Is this overreach? Regulating lawyerly conduct is a central function of the law society. The LSO enforces rules concerning lawyers’ and paralegals’ “integrity and civility,” as well as conduct that would “bring discredit onto the legal profession”. The SOP is a similar attempt to determine the ambit of appropriate professional conduct, with a more narrow focus on diversity as a valued and necessary part of the legal profession.

This seems kind of basic? The SOP will not solve systemic, structural, orinterpersonal discrimination within the legal profession. SOPs will not make an all Black firm erupt from Bay Street like Athena from Zeus’s head. It will not create an affirmative action program requiring diverse recruitment. It will not require practitioners to pledge their allegiance to social justice principles.

The SOP is a modest requirement—which, at its sharpest end, requires practitioners to, once a year, spend a brief period reflecting on their personal conduct regarding diversity. I would wager that, to the eyes of most Millenials, it appears to be a common sense, if somewhat pat, rendition of reasonable and expected conduct.

Folks have disagreed with this?

The SOP has become a fault line of this campaign. A slate of bencher candidates has launched a website called StopSOP—centered on trying to abolish the SOP. StopSOP declares that the LSO’s attempts to suggest that diversity should be promoted is a product of a nefarious ideology that seeks to steal fundamental freedoms from members of the profession. They also note the broadness of the term equality—and the diverse understandings of what this constitutes.

This should also be contextualized by the previous efforts to undermine the SOP. For instance, a Lakehead law professor attempted to sue the LSO over the SOP’s implementation; a group of current benchers failed to amend the SOP to allow for conscientious objectors, and a former founding partner dissolved his firm in protest of its introduction (because the SOPs introduction represented a “diversity faction [that] had captured my profession’s regulators”).

Is this really worth defending then? Yes, unapologetic and vociferously. The blow-back regarding the SOP demonstrates that the legal profession still has not vaulted a very low conceptual hurdle: that inclusion and diversity are good. This is a very basic step that needs to be acknowledged before we can embark on much thornier conversations about how to rectify entrenched equity issues.

What message does this send? As a racialized student, it is quietly shocking to realize that individuals who currently hold positions, or have decided they would like to run for leadership positions, in our regulatory body take such umbrage with the idea that there may be a need to support diversity in the profession.

I think that any reasonable individual can disagree on best methods or implementation for challenging discrimination. I understand that there has been a cultural sea-change on how we talk about diversity and inclusion— and this can leave folks feeling uncomfortable or lost in transition. Nevertheless, I am shocked by the rage directed towards a very low-level commitment—a low-level commitment that is squarely within the LSO’s role to regulate lawyerly conduct. A low-level commitment that provides substantial opportunities for a professional to tailor and formulate their own SOP.

The decision by some candidates to stake their leadership campaigns on this issue sends a chilling message to racialized practitioners about their colleague’s commitments to building workspaces that are accessible by all. It lays bare the distance that the legal profession still has to cover before it can really say that it is handling issues to do with diversity and inclusion.

There are litanies of ongoing challenges in the legal profession: access to justice, the articling crisis, the cost of LSO fees, public perception of our profession. These are all fertile ground for a meaningful campaign that would highlight the best of our profession and bring durable good to the LSO.

I am hopeful that this campaign can largely focus on creating new and innovative approaches to these challenges. I would urge lawyers and paralegals going to the polls in April to reject any candidate who decided to demonstrate their leadership qualities by decrying the need to think seriously about inclusion in our profession.