Wise Law Roundtable - Stop and Drop the StopSOP Slate of Bencher Candidates

Commentaries from Wise Law's lawyers on current cases of interest 

Garry J. Wise: I'll begin with a bit of background.  

Every Ontario lawyer and paralegal is required to create and abide by a Statement of Principles that acknowledges an obligation to promote equality, diversity and inclusion generally, and in behaviour towards colleagues, employees, clients and the public.

Wise Law's own Statement of Principles is here.

Elections for Law Society of Ontario Benchers will occur on April 30, 2019. Benchers, who serve as the LSO's board of directors, fulfil a central role in the governance of Ontario lawyers and paralegals. As noted at the LSO's bencher FAQ: 

A total of 40 lawyer benchers are elected - 20 from inside Toronto, and 20 from outside Toronto. A total of five paralegal benchers are elected. 

...Benchers attend monthly committee and Convocation meetings to develop policies related to the governance of individuals licensed to practise law and licensed to provide legal services in Ontario. Benchers also attend ceremonial calls to the bar and paralegal licensing receptions. Benchers may also be appointed to the Law Society Tribunal and sit on hearings to consider cases related to the competence, conduct and capacity of licensees

A group of Bencher candidates, self-identifying as the StopSop slate, has organized itself to run on the singular platform of using "best efforts to revoke the Statement of Principles upon election."  

We are a group of lawyers and paralegals in Ontario who are concerned about the directive by the Law Society of Ontario (LSO) that each legal professional must abide by a Statement of Principles (SOP) that acknowledges an obligation to promote equality, diversity and inclusion generally, in our behaviour towards colleagues, employees, clients and the public.

We believe that the LSO has no business telling legal professionals what principles they must profess, value or promote, and that this is an encroachment on fundamental freedoms under the Charter of Rights and Freedoms. It does not matter whether you agree with the spirit or intent of the values which you are asked to promote; the fact that an arm of the state can dictate your beliefs to you, on pain of the loss of your livelihood, is deeply troubling.

We are putting forward a slate of candidates for the upcoming Bencher election (for governance of the Law Society) in April 2019. Each candidate undertakes to use best efforts to revoke the Statement of Principles upon election.

In this week's Roundtable, Wise Law's lawyers comment on the StopSlop gang:

Simran Bakshi: I entered the legal profession with a sense of optimism (and if I am being completely honest, naivety) about the diversity I would find within the Ontario Bar. 

My law school class had been fairly diverse, and I assumed that this is what I would find in the workforce as well. What I discovered, however, is that while there is some degree of diversity at law firms, particularly in the junior pool of professionals, the extent of diversity tends to get watered down in climbing the ranks. 

In fact, in my nearly five years of practice, I have come across many “racialized” articling students and associates, perhaps a handful of “racialized” partners and exactly one “racialized” judge. 

While I am not suggesting that there is a rampant issue of racism in the Bar, to say that we do not have a problem with diversity in our profession would frankly be burying our heads in the sand. 

Given the lack of representation of minorities in the Bar, I am hard pressed to find a reason why an effort to promote the Law Society’s mandate is being met with such resistance.

Some of our colleagues seem to take great issue with the fact that the Law Society imposes a positive obligation to affirm a commitment to  equality, diversity and inclusion. What they fail to recognize is that an act of discrimination is not necessarily mutually exclusive from a failure to be inclusive of minority groups. 

In any case, imposing a positive obligation on lawyers to give teeth to the principles set out in our Charter and the Ontario Human Rights Code is hardly unreasonable.

The irony of decrying the Statement of Principles on the basis that it supposedly infringes on upon civil liberties to decide whether or not to encourage and promote equality, diversity and inclusion cannot be lost.

Think about the message we would be sending here - it is not okay to discriminate against racialized groups, but it is okay to exclude them? Or rather to not promote their inclusion? 

As much as I am a proponent of the mandate behind the Law Society’s Statement of Principles, I am less than optimistic that it will be effective in bringing about the change it is meant to. 

I simply do not believe that you can condition a person to believe in equality, diversity and inclusion by requiring that they affirm to do so. 

A resistance to embracing diversity is typically premised on a sense of fear and ignorance about what is different. Signing an acknowledgement to act differently hardly goes to the root of the problem, and is a band-aid solution, if anything.

Still, the Law Society is to be commended for recognizing that there is, in fact, a real issue with minorities being fairly represented in our profession, even if its proposed solution leaves much to be desired.

Paul Adam: Many employees of large companies are forced to act as ‘ambassadors’ of their employers, and spout a lot of vacuous nonsense that has made its way into the ‘mission statement’ of International Consolidated Widgets LLC, or what have you. They have no Charter protections from being required to make those statements.

And what the Law Society is asking its members to do is actually affirm that they believe that the legal profession has a duty to hire and represent minority communities, in accordance with the Ontario Human Rights Code. So never mind the posturing about rights - what is it that you do not want to have to say?

Is it that you do not, in fact, believe in hiring people in accordance with the Human Rights Code?

Or is it that you believe, in the abstract, in hiring people in accordance with the Human Rights Code, but you don’t believe you should ever have to demonstrate that you do so in action?

In the recent decision of Trinity Western University v Law Society, 2018 SCC 33, the Supreme Court had this to say about the Law Society:

[20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

[21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R. 613, at para. 47).

[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole.

Maybe these Bencher candidates disagree with this finding, which is now part of the law of the land.

But the fact is, businesses, schools, and governments have had the right to take measures to promote substantive equality, not just theoretical equality, even when that requires others to make adjustments to things they find inconvenient, or uncomfortable.

Maybe they agree with it in principle, but disagree that they themselves should be required to do anything affirmative to make it so. The Anti SOP-slate writes:

It is correct that we have a duty not to discriminate on prohibited grounds, but there is no positive legal duty to promote equality, diversity and inclusion. The LSO is effectively forcing lawyers to do something which it has no legal authority to require.

I suppose they think that equal access to the legal profession will descend like dew from heaven, and melt those inequitable barriers all by itself, without a single member of the legal profession having to put any money where his or her mouth is.

Unfortunately for them, they are wrong. The Statement of Principles is not, as StopSOP insinuates, a Maoist Cultural Revolution coming to sweep away individual rights and subject them to struggle sessions led by law students of colour who ask to be referred to by gender-non-binary pronouns.

It is perfectly in line with the law of Canada for the past 20+ years, as articulated by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General)   [1997] 3 SCR 624:

77 This Court has consistently held, then, that discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits.  Given this state of affairs, I can think of no principled reason why it should not be possible to establish a claim of discrimination based on the adverse effects of a facially neutral benefit scheme.  Section 15(1)  expressly states, after all, that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . .” (emphasis added).  The provision makes no distinction between laws that impose unequal burdens and those that deny equal benefits.  If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1)  stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.  

Even if I agreed with these candidates, I could not in good conscience vote for Benchers with such a poor understanding of our laws.

Garry Wise: The “compelled speech” arguments against the Statement of Principles strike me as both weak and grating.  Not to mention intellectually dishonest. 

The Rules of Professional Conduct represent the Law Society’s ultimate “statement of principles” applicable to the legal profession, and govern our dealings with the Courts, our clients, the general public and our professional colleagues. 

I hear nobody anywhere suggesting these Rules are offensive to any sensibilities, despite their deep regulation of what can, cannot, and at times, must be said in various circumstances we encounter each and every day. 

The Law Society also requires us to make many “compelled” declarations in our professional dealings.  As but one example, our Annual Reports naturally require us to affirm the truth of the practice-related and financial disclosures we make in these annual findings.  These compelled statements promote critical LSO objectives.  Is there anyone who would seriously raise an objection to that?

Would the anti-SOP gang also object if the Law Society required an affirmation that we promote the importance of ethics in practice and haven’t violated any Rule of Professional Conduct over the proceeding year?  

“You can’t force us to say that!”

Please. Call the proverbial whaaambulance. 

If the Law Society can “force“ us to list to the decimal the percentage of our time that we allocate to each area of practice and to state our trust account information is accurate, why shouldn’t it also be permitted to mandate that lawyers state that we affirm values of inclusion and don’t discriminate in our dealings with our employees, clients and each other?

It’s the law, after all. 

The objectors typically go to great length in pointing out that they, themselves, are nothing short of heroic in their own personal and professional diversity initiatives.  I’m sure that’s likely true, in many cases. 

They just don’t want to be forced to say it out loud, except in their self-serving bencher-election pamphleteering, where they’re arguing all-against the Statement of Principles.

That is a bit confusing.  

The legal profession continues to have significant and virtually unmovable diversity-related concerns. 

Why certain lawyers would devote even a moment of time to arguing against the Statement of Principles, let alone run entire political campaigns around their specious anti-SOP arguments, remains an unsolvable mystery to me. 

This so-called "debate" is not happening in a vacuum. We live in a time of escalating, record hate crime, incendiary political rhetoric and open racial intolerance in certain quarters.

Given this context, perhaps the anti-SOPPERS could better benefit society by devoting some of their misdirected energy toward real efforts to promote racial tolerance and inclusion - throughout the profession and throughout the planet.

StopSlop deserves to flop.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Webcast Today: The Law Society's Great Canadian Articling Debate II

Will Ontario law graduates soon have an alternative to the profession's articling programme?  Will the LSUC Benchers do away with articling all together?

Or will common sense prevail, with Benchers electing to devote the LSUC's resources and energies to strengthening, modernizing and expanding the province's current articling system, to ensure that an adequate number of quality articling positions will created by the profession for aspiring licensees?

Tune in to the resumption of the Law Society of Upper Canada's articling debate today at 9:00 a.m.

I will be live-tweeting from Osgoode Hall, along with a stellar panel of commentators.

For those interested in more of my thoughts, my previous post on the "articling crisis" is here.

(And while I have your attention -  don't forget to download WiseLii, our free mobile legal research app for the iPhone.  It's available at iTunes)

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

The "Articling Crisis" - Or is It?

On November 22, 2012, the Benchers of the Law Society of Upper Canada shall once again convene to address the province's so called "articling crisis."

I am not convinced there is any crisis at all. And I'm certainly not convinced that either of the solutions on the table is any solution at all.

The bottom line for me is simple - the Law Society should reject both proposals that have been advanced and opt instead to direct its unfettered energies and resources in the direction of strengthening, standardizing and expanding the current articling system.

We don't need radical changes or quixotic parallel programmes.

Rather, let's leverage this closely-watched debate into a golden opportunity to get serious about updating and modernizing our existing articling system.

To paraphrase Eisenhower (and my friend Irv Handler), the search for a scapegoat will generally be a successful enterprise. And as Ontario's Law Society and the profession have tackled this highly-charged "articling crisis," the search for scapegoats has indeed been predictably fruitful.

Who to blame?

Shall we blame the lawyers? The law schools?  The Law Society?  The Federal government? The Province?   The marketplace? The students themselves?  All of the above?

I suppose it should not come as a surprise that a significant contingent of those studying this so-called "articling crisis" have opted for none of the above. They have decided, instead, that it is articling itself that is the problem.

Off with its head!

So say the dissenters.

In their heroic quest to solve the "articling problem," they call for an end to this time-tested process of practical, on the job learning in favour of a yet-to-be defined, practical legal education programme - after law school - that will cost each license applicant thousands of dollars. As if their student loan burdens aren't already breaking them.

The majority's "parallel systems" proposal isn't much better. Do new lawyers or the public really stand to benefit from an ill-defined two-tiered system that bypasses necessary on-the-job training for the unlucky some, while costing the profession millions of dollars over a ten-year period?

Background - The Articling Task Force

The essential background reading is here:

• Articling task force proposes parallel licensing systems - Canadian Lawyer Magazine

• Pathways To The Profession: A Roadmap For The Reform Of Lawyer Licensing In Ontario - Articling Task Force Final Report

The Great Canadian Articling Debate

Now I confess to being somewhat late to this discussion.  Yes, it is true that amidst all the digital noise to which my email and RSS feeds are regularly subjected by LSUC, the CBA, the OBA and their ilk, I was vaguely aware at some point last year that the Law Society was studying the difficulties some articling candidates were having finding jobs, with a view to making recommendations to address this concern.

However, never in my wildest dreams did I expect our governors to actually try to do something about it.  They so rarely have.

But in this case,  they have dug in, indeed. And now verge on getting it all wrong.

In my mind, it is plainly obvious that the solutions to the articling jobs problem simply involve mobilizing the lawyers, the law schools, the Law Society, the Federal government, the Province, the marketplace and the students themselves to create and fund the 200 or 300 new articling jobs we need  - and perhaps in the process, address the access to justice issue we never tire of discussing and collectively avoiding.

At the risk of plagiarizing my own Twitter comments, let me reiterate:

Ontario: 35,000 lawyers,63 legal aid clinics, 172 Courthouses. #LSUC: Do we really believe we can't create another 300 #articling jobs? Shame.

Surely, we can find a way to place these not-yet employed articling students in a dynamic programme that rotates them between community legal aid clinics, courthouses, public advocacy organizations and government agencies.

If wholly funded by the profession (and it should not be), 300 positions paying a modest stipend of $25,000 for ten months of articling would cost each of  the Law Society's 35,000 members the staggering sum of $214.28 annually  At $30,000, the cost per lawyer would be $257.14.

(And yes, prospective students who can't find articling jobs, I understand that's not what Bay Street pays. Deal with it.)

University of Ottawa Law Professor Adam Dodek has set out an inspired proposal along these lines in his recent Slaw article, Articling and Access to Justice: An Ontario Legal Corps – Why Not?  I urge readers to give it a look.

Now I don't suggest a Legal Corps is the only solution, but do I think it is a good, progressive initiative that would reflect the best traditions of our profession.  It should be implemented.

My sense is that there is widespread consensus among Ontario lawyers that articling is an important, perhaps crucial component in the making of a competent lawyer. There is good reason the "articling debate" is so emotional.

I'm not sure I agree entirely with this comment on a March 2012 Canadian Lawyer article on the articling crisis, but there is enough truth in it that I believe it bears repeating:

The majority of law school graduates who cannot find articling positions are students who couldn't get into a single Canadian law school and had to go abroad. There has simply been an increase in these types of back-door students, and this is causing the articling shortage (in addition to the U of O's recent money-grabbing exploit). I wouldn't call it a crisis.

I hope that the LSUC does not take an "everyone deserves to be a lawyer" approach. If they eliminate articling, it'll just open up the flood gates and send us down the path of the U.S. legal profession, where anyone with money to pay tuition can join the profession. I wouldn't be surprised if English and Australian schools opened up private campuses in Ontario.

The LSUC needs to find a way to allow only the best and brightest to become lawyers. The elimination of a practical articling experience will not serve the public interest; it'll just allow for the existence of more members to pay dues.

And while the law schools - in Canada and Australia (Australia?) - plainly must shoulder a good deal of the blame for relentllessly flooding the marketplace with ever-increasing numbers of  J.D. graduates that the profession has inadequate capacity to absorb in articling positions, at the end of the day, it is we lawyers who will have to solve the problem.

The Law Society, quite understandably, is in a regulatory pickle over the articling shortage.  A fair licensing process cannot place candidates in a catch-22 that requires completion of articles when there are no articling positions to be found. The imposition of hurdles that cannot be jumped in the licensing process is ultimately arbitrary and unconscionable.  The fact that racial minorities are so dramatically overrepresented among those who do not find positions discloses a discriminatory component in this issue that simply cannot be tolerated.

The Law Society must therefore take a leading role in creating these needed positions. That they have tried and failed so far is rather unfortunate.  They - and we - must try harder.

My understanding is that approximately 300 new articling jobs must be created and the numbers problem will be solved.  (Perhaps it is only 200 or 250, depending on who you are talking to, but let us safely assume the additional requirement is somewhere in that range).

There are 35,000 lawyers in the Province.  If only one out of every 100 lawyers in Ontario became an new articling principal, once again, the numbers problem will be solved.

What do we know about firms that do not take on students? What are their issues? Money and cash flow concerns?  Shortage of work? Discomfort with the added responsibility? Desire to avoid dealing with the Law Society? Fear of change?  Lack of confidence?  Lack of interest? Nobody ever asked?

I'm not sure we know the answers to these questions.  That is unfortunate, but not fatal to action.

I suppose our firm, Wise Law Office, is a relative rarity in the profession in that we are a small firm that has hired articling students most years over the last many years. Our students have been a great bunch, and most were able to carve out a valuable role in direct advocacy work on behalf of our clients and as respected members of our team.  It is simply a pleasure to see students emerge over the short articling period as trustworthy, ethical and capable professionals. I genuinely take pride in our students' successes, during and after articling.  That really is a reward.

By way of example, just recently, I received a complex pleading that had been drafted by one of our former students.  On reading it, I couldn't help but note how incredibly well-conceived and meticulously drafted this lengthy document was.

As I told him, I wouldn't have changed a word.

"I had a good teacher," he responded.

I urge my colleagues in small law practices to consider creating an opportunity for a student.  I suspect you will be glad you did.  You may even decide you can't live without articling students on staff in the future, as I did.

The Law Schools

The law schools have a role to play in creating new positions.  Aside from funding placements in their own legal aid clinics, I would urge Ontario's law schools to reach out to smaller law firms about articling opportunities.  If you are selling your students on a Seven Sisters or bust mentality about articling, you are doing them - and the profession - a great disservice.

The law schools need to make a concerted effort to include small law firms in their career fairs - and they need to wholly subsidize any costs associated with small firm participation in these events.  They do neither.

The annual Summer and Articling Career Fairs, jointly run by the University of Toronto and Osgoode Hall Law Schools at  the Metro Toronto Convention Centre,  features an appallingly small group of employers - in 2009, only 58 employers participated.  The 2012 Fair boasted an increase to "over 70" employers in attendance at the 2011 event.

That is a very small - and certainly not representative - slice of the profession being featured.

The law schools need to stop selling students on the fantasy of the "big firm" payoffs.  They must take real responsibility for matching students with firms by including smaller firms in the menu of career options they place before their students.

Many, if not most, licensees will ultimately find themselves practicing in smaller firm environments. The value of preparing for that career destination with the kind of hands-on practical experience gained while articling with a smaller firm is so rarely considered, let alone advocated by our regulators.

It's high time to end all that.

Articling with a smaller firm need not be seen a consolation prize for those that biglaw passes by - for many aspiring lawyers, such articles may well be the best preparation there is.

Regulatory Solutions

Not so long ago - in 2011, to be exact, the Law Society of Upper Canada inaugurated a formal requirement that licensees participate in a specified number of Continuing Professional Development hours annually.

In other words, the Law Society requires us to learn.

If the Law Society is prepared to require lawyers to learn, I see no reason in principle that the Law Society should not also require licensees to teach.

If voluntary participation by lawyers in the articling programme cannot be increased, I propose a requirement that each licensee with ten or more years of practice experience be required to serve as an articling principal at least once every five years for at least one-half of a ten-month articling rotation.

Problem solved.

Of course, then lawyers would be scrambling to find students.  And we'd have another crisis.... and another task force...

And I'd have to write another one of these long blogs.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net