Statement of Principles debate reflects lawyers’ unwillingness to address systemic racism in the profession
Over the past two years the Law Society of Ontario (LSO) has become a public forum for the debate about the existence of systemic racism in the legal profession. Tomorrow, the regulator will open its floor once again to consider and possibly vote on the source of this debate: the Statement of Principles (SOP).
Life cycle of the SOP:
The SOP is a requirement for every licensee to create their own confidential statement affirming their “obligation to promote equality, diversity and inclusion [EDI] generally, and in their behaviour towards colleagues, employees, clients and the public”.
After identifying the issue of diversity in law firms, the LSO created the Challenges Faced by Racialized Licensees Working Group in 2012. After years of in-depth consultation with multiple stakeholders including equity-seeking groups, their final report was presented to Convocation in 2016.
The report, Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions, proposed 13 recommendations, of which the SOP was only a part of one of the recommendations. The other recommendations included collecting quantitative and qualitative data, educating through professional development and licensing, and addressing complaints of systemic discrimination in the profession. All of the recommendations – including the SOP requirement – were unanimously adopted by the LSO benchers in December 2016.
Nearly a year passed and it seemed the LSO was finally implementing concrete steps to address systemic racism in the profession. Then, in late 2017, when all licensees received correspondence from the LSO informing them of their SOP requirement, backlash ensued. The main point of contention for SOP opponents was its mandatory nature.
In anticipation of the May 2019 bencher election, a new slate of lawyers entitled StopSOP ran for the seats at LSO with promise to repeal the SOP. On low voter turnout, 22 of the 40 lawyer benchers were elected from the slate – a surprising result garnering ample attention from lawyers and the media. Soon after, a grassroots collective of lawyers titled Demand Inclusion established themselves to campaign against StopSOP’s claims and support equality, diversity and inclusion.
While the newly-elected benchers debated the SOP at their meeting on June 27, 2019, the matter was adjourned and will now be discussed at the next special meeting of Convocation on September 11, 2019.
“Compelled speech” argument hijacks systemic racism concerns:
There are three possible outcomes of the special meeting on September 11: keep the SOP, repeal the SOP, or make the SOP voluntary.
The mandatory nature of the SOP has consistently been cited as compelled speech and an affront to freedom of expression by the StopSOP benchers.
“I was now going to be compelled, coerced by force of law to publicly promulgate principles that someone else was dictating to me,” bencher and key StopSOP member Murray Klippenstein said at the last meeting on June 27.
At that same meeting, bencher Megan Shortreed contested that the courts have affirmed the broad regulatory power of regulators to constrain professionals’ rights and freedoms in order to achieve its broad public interest mandate. The oath that lawyers must take for their license has been cited by many as one example of current mandated speech – a requirement StopSOP curiously has not opposed.
At the meeting, a repeated theme was that being a lawyer is not a right but a professional designation to be earned in compliance with LSO’s requirements.
“It is a privilege to be a lawyer,” bencher Atrisha Lewis wrote in a Globe and Mail opinion article in anticipation of June 27. “This privilege comes with a responsibility.”
In an email to Obiter Dicta, Lewis said that the “SOP will give every lawyer in this province an opportunity to reflect on their practice and consider what are they doing and what can they do to make the profession a better place for all, and to better serve diverse clients.” During her tenure, Lewis said she is focused on advancing the EDI initiatives put forth in the working group report.
The StopSOP campaign has further contended that the SOP perpetuates an EDI “political ideology” that shouldn’t be compelled. By framing it as an ideology, some think the StopSOP benchers are denying the factual findings of the working group report that systemic racism exists and is an issue.
Some argue that, at best, StopSOP has hijacked a conversation that began as an effort to address systemic racism in the name of compelled speech. A more critical view by SOP supporters is that the backlash is doing exactly what it intends to: deny that systemic racism is an issue in the profession and divest legal professionals of any responsibility to address it.
In an email to Obiter Dicta, Elsa Ascencio, a new call lawyer and organizer of Demand Inclusion, said the group maintains that “it was never about compelled speech” nor “freedom of expression”, but rather “a backlash to diversity in the profession”. Ascencio supports this claim by highlighting that many StopSOP benchers are still opposed to the voluntary SOP.
The current strategy of Demand Inclusion and SOP supporters is to support the “Groia motion” for the voluntary SOP – named after the bencher who brought it forward, Joseph Groia. This is a tactical move given that it seems to be the “best hope for the SOP,” Lewis said. Although it will not achieve the purpose of the SOP, which was for each licensee reflect on their obligations, it is “better than nothing,” Lewis maintained.
Consequences of tomorrow’s vote:
There is a sense that repealing the SOP can threaten the integrity of other diversity supports currently in place. For example, Ascencio cites fears that StopSOP will next target the Discrimination and Harassment Counsel – provided by the LSO for licensees who face discrimination – for elimination.
“To be blunt: the SOP was the easiest recommendation for the StopSOP to pick on,” Ascencio said.
Looking at the broader picture, Lorraine Chuen, a 1L Osgoode student asks, “What kind of message are lawyers sending when they refuse to state a basic commitment to promote equality, diversity and inclusion? What message does it send to clients, members of the public, fellow lawyers, students, or employees from equity-seeking groups?”
In August, many new Osgoode students like Chuen began their legal education with the Ethical Lawyering in a Global Community class. The class discussed how many historical and current atrocities have lawyers behind the scenes, legally bringing oppression to fruition. The Truth and Reconciliation Commission report gives recent — and still highly relevant — examples of the role of lawyers in perpetrating multi-faceted violence against Indigenous people.
Two years ago, around the same time that the SOP debate began, Hadiya Roderique shared her experience of exclusion as a lawyer in a featured Globe article, “Black on Bay Street”. Experiences like Roderique’s were included in the long consultations of the working group report.
Supporters of the SOP underscore that historically oppressive actions of lawyers and the profession’s own relationship to exclusion of racialized people are connected. This is why, they argue, diversity in the profession is one step to creating a Bar that is more competent and able to work in the public interest. The SOP is just one of 13 recommendations needed to tackle systemic racism in the profession.
Contemplating the state of the SOP debate, Chuen said, “I want my peers and future colleagues who are Black, Indigenous, people of colour, women, Muslim, disabled, trans and/or queer to feel welcome, to feel safe, in professional legal spaces.”
Tomorrow, we will find out what whether our regulator agrees.