The LSO’s Statement of Principles Missed Its Mark
At September’s convocation, the Law Society of Ontario (“LSO”) voted 28–20 (with two abstentions) to repeal the Statement of Principles (“SOP”), an oath that every licensee must adopt in their annual report “to promote equality, diversity and inclusion”, both generally and in one’s “behaviour towards colleagues, employees, clients and the public.” Consequently, a motion was passed that requires every licensee to acknowledge their “special responsibility to respect the requirements of the human rights laws in force in Ontario”, undertaken “in accordance with the Rules of Professional Conduct”, in their annual report. This decision has stirred some anxious debate in the legal community, specifically between those who believe that the SOP was critical to improving equality and diversity in the profession and those who regard it as a form of unconstitutional compelled speech.
The value of diversity in our developed, multicultural nation is well-acknowledged in most academic circles. Studies from McKinsey & Company and Boston Consulting Group have noted the increased profitability of companies with greater gender and ethnic diversity on their executive teams. While these results display correlation rather than causation (it may be that more profitable companies choose to promote executive diversity for marketing or legal reasons), they certainly warrant a closer look at the financial value of diversity in the professional world. I would argue that diversity of thought and opinion should be held in even higher regard, as a group of heterogeneous mindsets and ideologies is more likely to produce innovative ideas and products for the workplace and market at large. But despite the value of any end or goal, it is key to analyze the means used to achieve it and the various costs and benefits associated with the avenue.
When analyzing the value of the SOP in achieving the LSO’s “Equality, Diversity and Inclusion” initiative, we must consider whether or not this form of compelled speech actually achieves its objective, and whether it’s justified in doing so. The legal profession traditionally excluded females, racial minorities and the working class in general, in a manner that could hardly be described as anything but downright discriminatory. Today, the profession is certainly more diverse than ever before, but females and racial minorities still find themselves disproportionately underrepresented at the partner level, where a gender pay gap is also observed. These disparities are reportedly a result of time taken off work (often for family), willingness to work longer hours and travel for work, discriminatory bias, and simply the time required for equal opportunity initiatives to age alongside the minorities they support.
Any attempt to balance female and minority representation and pay in the upper echelon of law firms will need to consider all these factors, a task unsuitable for a forced annual statement. A comprehensive study in the Harvard Business Review identified the counterproductivity of diversity initiatives like mandatory unconscious bias training, job tests, and grievance systems, while emphasizing the effectiveness of voluntary training, self-managed teams, cross-training, targeted college recruitment, mentoring programs, and diversity task forces and managers. The key is to forgo control tactics in favor of sparking engagement and increasing contact among different groups. A mandatory pledge that is undertaken by licensees, devoid of one’s own volition, is therefore unlikely to effect any positive change in the legal community, perhaps even having the opposite effect. The individuals who have taken real steps to promote equality, diversity and inclusion were likely motivated to do so regardless of this statement, while those who consciously object to do so will nonetheless remain unmoved by it.
Despite the SOP’s futility in engaging licensees in diversity promotion, there exists the argument that it signals the legal profession’s conviction in equality and inclusion to minorities, and acts as a pull factor by making them feel better about their role in the field. The practical implications of this may or may not be material, but they are nonetheless overshadowed by the sacrifice of our freedoms of conscience and expression entailed by the SOP. Not only were licensees forced to adopt and abide by a value statement they might have disagreed with, but the SOP created an ideological litmus test for the practice of law. Queen’s University Professor of Law Bruce Pardy aptly characterized the dangers of such a test: “The SOP requirement threatened the independence of lawyers. It infringed upon their right to think and speak for themselves. Instead of focusing on its regulatory mandate to oversee competence, the Law Society took upon itself the role of supervising the political attitudes of its licensees.”
Underlying the arduous, yet remarkable development of Western culture were the philosophies of rationalism and empiricism and the values of free thought, free speech, and individualism. The independence of lawyers has been keenly premised on such values in order to promote the finding of truth in a manner that serves the public good to the greatest extent over time. That’s not to say that the state of the profession cannot be improved, but we should be wary of fundamental changes that erode the very foundation of the comparatively great legal system we have today. The ideals of equality, diversity, and inclusion, as essential as they may be, can often run at odds with the aforementioned individual liberties, especially in the context of radical feminism, which celebrates equality of outcome as a desirable goal. The SOP is a vague requirement which can be interpreted in any way that the LSO pleases. That licensees must blindly profess their unquestioning fealty to a standard which may be at odds with the foundational values of the profession and our nation is a misguided demand and a dangerous precedent.
The new requirement to respect Ontario’s human rights laws, as redundant as it may be, is certainly a better option than its predecessor. As Professor Pardy said, “The repeal of the SOP is a victory for freedom of thought and speech, for the rule of law, for the independence of lawyers and paralegals and for the future of the Law Society. However, the SOP is just one symptom of the Law Society’s ever-expanding mission, sprawling bureaucracy and ballooning budgetary expenditures.”