Canada's lawyers 'obliged' to promote diversity

The Law Society of Upper Canada is undergoing a couple of upheavals. One, not the topic of this article, is over its name. Should it ditch its old-fashioned reference to Upper Canada and incorporate Ontario into its title?

But the bigger problem is over equality and diversity. There has been much controversy following a recent email it sent to its member lawyers, which raises interesting questions. It said the following:

‘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 message raised the blood pressure of various Ontario lawyers and commentators on the grounds that it obliges lawyers to acknowledge that they will promote equality, diversion and inclusion (underlining added here and below). Often, professional conduct in this area is described in terms of what you should not do – you should not discriminate, victimise, or harass, for instance – which is itself usually related to legal obligations not to behave in such a way. But the Ontario email requires lawyers to take active steps of promotion.

It was noted, too, that the request was not limited to a lawyer’s behaviour in practice. The promotion must be undertaken generally, ‘and in your behaviour towards’ your legal practice. Lawyers in retirement or not engaged in practice are apparently also bound by it.

Hostile commentators had a field day comparing it, for instance, to North Korea, with forced fealty to a ruling dogma – which is a grotesque comparison in democratic Canada. They also pointed out that there is no obligation in the lawyer’s code of conduct that lawyers promote equality, and so the email required acknowledgement of an obligation which does not exist.

One of the most colourful opponents was Conrad Black, former owner of the Daily Telegraph who was imprisoned for fraud in the US. He took the opportunity to rail against the legal profession in general, in his usual minimalist, understated style:

‘I have come to recognize the law as a largely venal association of self-serving gougers riveted on the back of society and dispensing a hideously bloated service on a defenceless public as the lawyers jubilate in their 360-degree cartel.’

There are, on the other side, strong supporters of the policy, who disagree sharply with those with raised blood pressure. The arguments between supporters and opponents make interesting reading. One of the strongest supporters said:

‘Maintaining a legal profession with widespread violations or opposition to equality, diversity and inclusion principles is not in the public interest, and directly undermines the public confidence in the legal system. Equality, diversity and inclusion are themselves issues of competence to practice in modern society, and require continuous and ongoing education and development for every lawyer in the province.’

The lively debate in Canada sent me scurrying immediately to our own SRA handbook, and to chapter 2 of the Code of Conduct, which deals with the provisions relating to ‘Equality and diversity’ for our own profession.

The outcomes we must deliver are along the lines of what a solicitor should or should not do to comply with the general law on the topic. The closest we come to any Ontario-like statement is that, among the indicative behaviours which may tend to show that a lawyer has achieved the outcome and so complied with the Principles, is the possession of ‘a written equality and diversity policy … which is appropriate to the size and nature of the firm’, including ‘a commitment to the principles of equality and diversity and legislative requirements’.

This seems to me a very different thing from a statement from every solicitor acknowledging an obligation to promote equality and diversity in all aspects of their lives, and not just their professional lives. There has unsurprisingly been no similar fuss here.

I was pointed to the Canadian debate because of work I am undertaking at the International Bar Association on whether its International Principles on Conduct of the legal profession should be revised to include a provision on equality and diversity. Some lawyers in the working group think that it is a general issue which applies to the whole population, and not just to lawyers, and that it therefore has no place in principles of conduct which are specific to the legal profession. Others take the more expansive view of the supporter of the Ontario statement quoted above.

We know that equality and diversity confront us daily, in both our personal and professional lives. How we deal with them is of such importance that I don’t suppose anyone there cares any more about the other debate, about the name of their law society.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council