Lawyers say they should be excluded from money laundering policies in B.C.

Really? “Better call Saul:”

Two groups representing lawyers say their profession should be excluded from any government regulations aimed at fighting money laundering in British Columbia in order to protect the confidentiality of the lawyer-client relationship.

Kevin Westell made joint closing submissions at a public inquiry into money laundering on behalf of the B.C. chapter of the Canadian Bar Association and the Criminal Defence Advocacy Society.

The bar association representing 7,000 lawyers in the province is also concerned about suggestions that there is a high risk of money laundering inherent in the work of lawyers, Westell told the inquiry as it wrapped up on Tuesday.

The province announced the launch of the hearings in 2019 after three reports outlined a money laundering crisis fuelled by billions of dollars being funnelled through the gambling, real estate, horse racing and luxury car sectors as well as the illegal drug trade.

The inquiry heard from 198 witnesses since hearings began in May 2020.

Westell told inquiry commissioner Austin Cullen that his ultimate recommendations could significantly affect how lawyers do their jobs and the extent to which members of the public will continue to feel confident that their dealings with lawyers would remain strictly confidential.

The Canadian Bar Association maintains that the proper approach to dealing with concerns about money laundering in the legal profession must be through ongoing self-regulation to ensure that lawyers aren’t forced into a situation where they’re spying on their clients, he said.

The groups’ concerns about potential infringement of confidentiality as part of solicitor-client privilege as well as the independence of lawyers stem from findings in one of two government-commissioned reports on “dirty money” authored by Peter German, a lawyer and former RCMP deputy commissioner.

German said in the second report that lawyers in B.C. are at high risk of being targeted by money launderers, not only because they are exempt from financial reporting, unlike notaries, but due to the risks that are part of dealing with real estate transactions.

“Lawyers are the ‘black hole’ of real estate and of money movement generally. With no visibility by law enforcement on what enters and leaves a lawyer’s trust account, many investigations are stymied,” German wrote in the March 2019 report.

He also said the “no cash rule” governing the acceptance by lawyers of no more than $7,500 is limited in its effect because it does not prevent someone from giving tens or hundreds of thousands of dollars in cash to a lawyer for bail money, or for fees and expenses.

However, Westell said German offered no suggestions on how third-party reporting of cash and suspicious transactions should be handled.

“An external reporting requirement for lawyers would inevitably breach solicitor-client confidentiality. Cash and suspicious transaction reporting would require documentation and disclosure of the source of funds to a party outside (the Law Society of B.C.),” he said.

Criminal defence lawyers are particularly concerned that the government and police may take increasingly invasive anti-money laundering measures that could be unproven in their effectiveness and “unfairly trample on the rights of British Columbians,” Westell said.

However, lawyer Toby Rauch-Davis, who represents a coalition that includes the group Transparency International Canada, told Cullen that lawyers, bankers and accountants should be included in any policies in order to allow for public scrutiny of how the advice of those professionals could be sought by criminal enterprises involved in money laundering.

“A finding that accountants and other professionals pose no money-laundering risk is akin to the kind of wilful blindness that led us to these proceedings,” he said.

“Given the fact that there can be no public scrutiny of the solicitor-client relationship, there’s an enhanced public interest in having complete transparency on the measures that the law society takes to ensure lawyers are not facilitating money laundering.”

The commission’s terms of reference say Cullen’s final report is due Dec. 15.

Source: Lawyers say they should be excluded from money laundering policies in B.C.

Why are there still so few Black lawyers on Bay Street?

Good detailed analysis in the Globe (see article for graphics):

Just about every Black lawyer on Bay Street has a tale to tell about the racism – whether overt or covert – they’ve experienced throughout their career: drawing scathing rebukes for minor errors that white colleagues don’t seem to face; being mistaken for an assistant rather than a litigator; enduring comments about their hair and clothing, or blatant accusations of tokenism; being ignored in a circle of white colleagues, and left out of after-work drinks and client meetings.

For years, the country’s biggest law firms have been proudly posting messages of diversity and inclusion on their websites. Yet, with organizations on both sides of the border now at an inflection point when it comes to race, Bay Street is still overwhelmingly white.

According to the Law Society of Ontario (LSO) – the largest self-governing legal body in the country, with more than 55,000 lawyers and 9,000 paralegals as members – 19.3 per cent of the province’s lawyers in 2016 identified as racialized, a full 10 points lower than the population at large. A mere 3.2 per cent were Black, compared with 4.7 per cent of Ontario’s population.

As for the situation at the country’s largest law firms, comprehensive data either doesn’t exist or hasn’t been made public. To help fill in the gaps, The Globe and Mail sent questions about racial diversity to 20 of them (including Bay Street’s hallowed Seven Sisters: Blakes, Davies, Goodmans, McCarthy Tétrault, Osler, Stikeman Elliott and Torys).

While more than half provided information on racial diversity within their ranks, only five firms broke out data on Black lawyers in particular; two others confirmed the number of Black partners. (Many respondents cited the need to protect privacy and data collection policies that prohibit the disclosure of numbers so small the people behind them could be identifiable.)

Six firms – Osler, Bennett Jones, Davies, McMillan, Blaney McMurtry and Fogler Rubinoff – said they either didn’t collect the information or would not share it publicly; WeirFoulds declined to answer any questions for this story.

The Globe also conducted a visual analysis of photos and biographies posted on the websites of 16 of Toronto’s largest firms to estimate the number of Black partners represented. The result: roughly 35 out of around 4,000 partners. This is an imperfect estimate, of course, because it can’t account for how people self-identify. Still, many law students and junior lawyers perform a similar exercise, scanning through the photos on firm websites in search of others who look like themselves.

McCarthy Tétrault was one of the five firms that was most candid in its responses (along with Fasken, Goodmans, Dentons and Aird & Berlis), admitting that just 2 per cent of roughly 700 lawyers, including partners, and articling students at the firm are Black. (Dentons reported a similar figure.)

McCarthy’s CEO, Dave Leonard, says he’s not proud of its diversity numbers, but decided to share relatively detailed information anyway. “Transparency,” he says, “is part of how we’re going to solve this.”

“I stand up often and talk to our people about my white privilege and that too much of our partnership looks like me,” Mr. Leonard adds.And I do recognize that I’m here because of hard work and intelligence and all the rest of it. But I’m also here because of my role and my place in society, and where I grew up and how I grew up and the colour of my skin and my gender.”

Hadiya Roderique chronicled five years of microaggressions in her essay “Black on Bay Street,” published in The Globe in November, 2017. Ms. Roderique had been hired as an employment lawyer at Fasken straight out of law school, where interviewers were wowed by her top grades and litany of extracurriculars. But she ultimately struggled to fit into the “upper-class white world” that dominates the corporate realm. “Big law could not accommodate the person and the colour I was,” wrote Ms. Roderique, who went on to do her PhD in organizational behaviour at the Rotman School of Management.

Ms. Roderique’s essay went off like a bomb inside the country’s biggest law firms. Linc Rogers, a partner at Blakes who is Black, remembers feeling there was a new kind of willingness to talk about how Bay Street could accommodate people from different backgrounds.

“Her thesis was there is a narrow corporate culture on Bay Street, and to succeed, you have to mold yourself to it,” he says. “She said out loud what a lot of people were saying in quiet conversations, and she said it with thunder. Everybody read it. Everybody talks about it.”

For this story, The Globe spoke with dozens of Black lawyers and those from other diverse backgrounds about their experiences at Bay Street firms. Some commented on the record; others asked to remain anonymous, concerned that even mildly critical remarks could impede their careers in what is still a relatively small community dominated by a handful of powerful players.

“I think systemic discrimination is unfortunately baked into the system,” says Vivene Salmon, president of the Canadian Bar Association. “I think you have to fight pretty hard to defy the odds.”

DIVERSITY SURVEY

The Globe asked the 20 largest law firms in Toronto (most of which have offices around the country as well) questions about the diversity of their Canadian workforce. The following firms responded and most provided data from their most recent internal survey based on employee self-identification.

The world of Bay Street law is small. All together, according to trade publication Lexpert, the 20 largest corporate firms in Toronto collectively employ about 8,500 lawyers across the country, almost half of them in Toronto itself. For two decades, these organizations have been promoting the idea of diversity and inclusion, but their efforts have focused primarily on gender, often with the goal of reaching partnerships comprised of at least 30 per cent women.

While progress has come slowly on that front, Bay Street has generally not put the same emphasis on recruiting, retaining and promoting lawyers who are Black, Indigenous and people of colour (BIPOC) – or, for that matter, those with disabilities or members of the LGBTQ+ community. Even without published information on Black leaders at Canadian law firms, it’s evident the numbers are miniscule.

“We don’t collect data on this stuff, but if you poke around the firm websites, it becomes pretty clear the representation of Black people on Bay Street isn’t anywhere near what Toronto actually looks like,” says Marlon Hylton, who was a partner at Cassels before recently starting his own data, information and innovation law firm and affiliated tech company, INNOV-8 Data Counsel.

In 2010, the Canadian Association of Black Lawyers held an event to honour 17 Black partners known to work at major Bay Street firms. A decade later, that figure appears to have roughly doubled – but still represents less than 1 per cent of partners at top firms.

Beyond Bay Street, there were just 63 Black lawyers in Ontario who were partners at law firms of all sizes in 2016, according to the LSO. That’s just 6 per cent of Black lawyers overall; meanwhile, 18 per cent of white lawyers (about 4,800) were partners.

Black lawyers also tend to work as sole practitioners at a far higher rate than their white counterparts. In 2016, the LSO lists 31 per cent of Black lawyers in the province as sole practitioners, compared with 19 per cent of white ones. That suggests at least some don’t find a career path for themselves in Big Law and opt instead to set up shop on their own.

Data on the number of Black law students is also uneven – only a handful of Canada’s 20-plus law schools share demographic information. What information is available shows members of the Black community account for about 1 per cent of law students at both the University of Toronto and Queen’s University; York University’s Osgoode Hall is more representative, at about 8 per cent. Part of the problem is cost: Law students graduate with an average debt load of $83,000 in Ontario – particularly damaging for low-income and BIPOC students without the benefit of generational wealth.

Marie Kiluu-Ngila was one of just five Black students in her law class at U of T, spurring her to co-found Black Future Lawyers, a program to support and encourage Black students going into law. When CBC interviewed Ms. Kiluu-Ngila about the initiative in January, the firm where she was articling, Cassels, featured the clip on its website. In late spring, however, she learned she was one of two students out of 15 who wouldn’t be hired back. Despite several requests, she says she never received a clear answer why.

“It was very confusing – to hear that you’re so great, you have stellar performance reviews, to be told you’re an excellent student,” says Ms. Kiluu-Ngila, who is now looking for work in consulting, or with a government or financial institution. “It didn’t really add up.”

The hiring process is just the first hurdle Black law grads face, where a foreign-sounding name might scuttle your chances of getting an interview in the first place and an ineffable quality called “fit” dictates who gets hired and who doesn’t.

Since most students’ résumés look roughly the same, who gets an interview is based largely on grades. But even top marks might not be enough to overcome bias in favour of white-sounding names. One Black lawyer who now works in Ottawa told The Globe he applied widely to large Toronto firms with employment and labour practices. He had straight A’s in all the relevant courses, but never even got an interview – leading him to suspect it was related to his African last name. In fact, a 2016 study by Sonia Kang at the University of Toronto showed Black students who “whiten” their résumés get callbacks at a rate 2.5 times higher than ones who don’t.

Once past the résumé-screening process, further barriers include looking the part during speed-dating-style interviews and navigating awkward cocktail parties with talk about international travel, cottages and ski clubs.

Shaneka Shaw Taylor, now a partner at Boghosian + Allen, recalls the high anxiety she felt during in-firm interviews. “At various interviews, I felt excluded or not understood, in the sense that I just couldn’t resonate with some of the conversations, some of the questions, some of the experiences. And it wasn’t coming from a place of the interviewer meaning to do anything wrong – sometimes you can only speak to what you’ve experienced.”

Several lawyers who spoke with The Globe expressed concern that nepotism is also still common, with children, nieces and nephews of partners (or friends of partners at other firms) often flagged for interviews.

“One of the things that helps people get Bay Street jobs is connections and legacy,” says Hermie Abraham, who articled at Cassels before starting her own employment law practice. “If you do see Black students landing jobs at those firms, you know they’re outstanding.”

Even once you’re in, it can be a struggle to stick around and to attain the same level of pay as your peers (for in-house counsel, for instance, white lawyers make an average of $12,000 more than their BIPOC counterparts). “I’m not going to tell any Black lawyer at a major firm that being Black doesn’t matter,” says Raphael Tachie, a senior in-house lawyer at TD Bank. “I think it does.”

Mr. Tachie joined Blakes as a summer student in 2008 in part because there were five Black lawyers at the firm – “the most I’d ever seen.” But although Blakes made a concerted effort to recruit Black students, he later found many of them didn’t stay. (He left after articling because he was only offered a non-permanent position.) He now passes on the same advice to Black law students that a mentor once gave him: “Go into job interviews as if being Black doesn’t matter, but leave the room knowing it does.” That means turning on the charm to get the job, he says, then working harder than anyone else to keep it.

But even getting the chance to do that can be difficult. To climb the ranks, lawyers need to build a book of business, which means getting good work on important files, along with crucial client face-time. All that is doled out by partners, who for decades have tended to mentor and assign work to people they like – people who remind them of themselves.

“It might not be anything particularly malevolent on someone’s part, but it’s just that you’ve made a connection with the person in the next office,” says Blakes’ Mr. Rogers. “Maybe they went to the same school, vacation at the same spot, like the same sport. You have a connection, and you give them work. Those attributes are often tied to race and gender.”

When the CBA’s Ms. Salmon was a junior lawyer on Bay Street, she recalls working weekends and long hours on legal research, and then having to beg the partners to let her attend client meetings. “If you were a white guy, you wouldn’t have to beg,” she says. “The senior partner on the file would say, ‘Oh it would be good for your learning – why don’t you come along?’ ”

The culture is changing, some lawyers say, but invitation-only meals and tickets to major-league events remain a big part of business development and career advancement, and Black lawyers are often left out. Black women face a double bind because of their race and gender, says Jenelle Ambrose, in-house counsel with Grant Thornton and secretary of the Black Female Lawyers Network.

“There’s a discomfort in interrogating not just the things that you are doing, but the things that you aren’t,” Ms. Ambrose says. “Like not including people – why is it that someone isn’t really a fit? Why is it that someone is invited to golf or after-work drinks, and someone else isn’t?”

Then there are the consistent microaggressions that leave many BIPOC lawyers confused and thinking, “I’m pretty sure that’s racism,” says Mr. Hylton, who worked at McCarthy Tétrault before he was a partner at Cassels. Many of the lawyers who talked to The Globe had stories of being praised for being articulate – as though it were completely unexpected – or being told by a colleague, “I don’t see race.” Both women and men spoke of receiving comments on their hair, and one man wondered if letting his curls grow in might affect his job prospects.

“You walk around with this sense of a question about whether or not they think you belong,” Mr. Hylton says. “You know you’re just as smart, you do good work, but you still have that feeling of needing to do that much more than everyone else.”

On one occasion, Ms. Salmon attended a meeting with a group of white men when a lawyer on the opposite side of the file told her to serve coffee. “I essentially wasn’t invited to sit at the table, but I was told to get coffee for everybody else. That just shows you the effect of race and gender. It shows you you’re not considered equal.”

Lori Anne Thomas, president of the Canadian Association of Black Lawyers, has been in plenty of similar situations throughout her 12 years of legal practice. “These things come about in your day-to-day experiences, and you’re faced with a decision tree of how do you act, how do you respond? Am I the educator today, or am I the stern corrector? Or do I ignore it? And then, how do I do my job?” Ms. Thomas says. She owns her own criminal defence firm, which she says gives her the freedom to wear her hair dyed blonde and cropped short. But she often hears from CABL members about the pressures they face to look a certain way at corporate law firms: “What do I wear today? How do I minimize my Blackness to assimilate and accommodate? Do I wear the colourful tie that brings out my African heritage, or will that be perceived as ‘too Black?’ ”

In the wake of the police killing of George Floyd in Minneapolis, many Bay Street firms began to reevaluate their efforts on diversity and inclusion. At Stikeman Elliott, chairman Marc Barbeau sent a firm-wide email, acknowledging, “We’re by no means perfect.” Although it didn’t share overall numbers, the firm says it has made progress on hiring junior lawyers from diverse backgrounds, but admits it hasn’t done as well on retention and promotion. Stikeman’s leaders have been going through an “uncomfortable process,” says Mr. Barbeau, as they question why they came up short, “despite all our good intentions, our desire to be fair, to be equitable and to advance these things.”

Over at Gowlings, chief executive Peter Lukasiewicz says that when it comes to ensuring lawyers from diverse backgrounds make it to partner, “honestly, until recently, firms simply weren’t addressing that. … We know what some of the issues are and are addressing them.”

Last week, Norton Rose, Stikeman Elliott, Bennett Jones and corporate finance firm Wildeboer Dellelce signed on to a pledge associated with the BlackNorth Initiative, a new program to improve Black representation in boardrooms. The firms have committed to attaining seven goals, including hiring at least 5 per cent of their student work force from the Black community and employing Black or visible-minority leaders in 3.5 per cent of senior roles by 2025.

Yet, recent events have shown many in powerful positions have yet to confront the widespread and insidious barriers facing lawyers from diverse backgrounds. Stockwell Day resigned his position as a strategic adviser to McMillan in June after questioning the existence of systemic racism during a TV appearance. Both the firm and the business community overall were quick to censure Mr. Day for his remarks, which he made at the height of protests over Mr. Floyd’s death.

Mr. Day’s opinions were hardly unique in the world of Big Law, however. Months earlier, a co-ordinated group of benchers was elected to the board of the Law Society of Ontario after campaigning on a promise to overturn a statement of principles (SOP) that would have had lawyers and paralegals pledge to promote equality, diversity and inclusion. The SOP was scrapped in September, leaving many BIPOC lawyers feeling betrayed.

“It’s disheartening,” says Atrisha Lewis, a litigation lawyer at McCarthy Tétrault who was also elected as a bencher last year. “On the one hand, you see now a greater kind of attention and rhetoric focused on race. But at the same time, with all of this happening, you have this slate who very much campaigned on denying that systemic racism exists.”

In interviews with leaders from six firms – Stikeman Elliott , McCarthy, Cassels, McMillan, Gowlings and Blaney McMurtry – as well as lengthy written responses from others, Canada’s biggest law firms generally express a commitment to do better on representation and regret over their failures to date.

“We are aware that all of the large Canadian firms are dedicated to anti-racism and diversity in the legal profession, and are taking steps to address inclusion and retention of Black lawyers and partners,” Angie Andich, director of communications at Dentons, said in an e-mail last week. “We have been in touch with each other, nearly weekly, to address this issue.”

The research is clear on how to improve outcomes for lawyers from diverse backgrounds, says Ms. Roderique, who is now an equity, diversity and inclusion researcher and consultant. For starters, she’d like to see firms eliminate the “mystery” of the interview process and end subjective elements like cocktail parties and dinners, since they can penalize BIPOC candidates, some of whom may have never attended such an event. Firms should also take steps to make recruiting and retention more objective, she says, by removing names from résumés, using standardized interview questions and controlling the distribution of work. “It’s not rocket science,” she says. “They just have to actually follow through and do these things.”

To address the pipeline issue, many firms are involved with diverse student groups (14 of the firms surveyed sponsor the Black Law Students’ Association of Canada, for example), and several donate money to scholarships aimed at BIPOC students. McCarthy Tétrault said it plans to run a pilot project offering summer jobs to first-year law students, with an emphasis on recruiting from equity-seeking groups.

Most firms have also conducted at least some training around unconscious bias – usually for firm leaders and those involved in hiring – and some have rolled it out firm-wide or plan to (including Cassels, McCarthy, Gowlings and Davies). On the hiring front, McMillan, Gowlings and Fasken have begun using standardized interview questions. Lenczner Slaght, a litigation-focused boutique, was the first Canadian firm to implement anonymized résumé review, in 2018. Shara Roy, a partner and co-head of the firm’s student program, says the evidence so far is anecdotal, but in the first year, they hired 11 students, nine of whom were women and six of whom self-identified as racialized. Last year, the firm hired eight female students, three of whom were racialized. So far, none of the largest Bay Street firms said they have taken steps to make résumé review anonymous.

When it comes to advancement, almost all firms have some sort of formalized mentorship program, but many lawyers also spoke about the importance of getting good work. Most firms have controls in place to distribute work to junior lawyers, but some – including Blakes, McCarthy Tétrault, Osler and Fasken – have gone further, formalizing work-allocation processes in large practice groups or across the firm, taking subjective assigning decisions out of partners’ hands. Other firms say they’re considering similar initiatives.

Banks, pension funds and other big corporate clients are also ramping up demands on external legal providers to field diverse teams. American companies have been more aggressive on this front, says Kristin Taylor, deputy managing partner at Cassels, adding that large Canadian companies have started to require more detailed data from law firms on the issue. “Relying on clients to force us to do it is obviously a wrong-headed approach,” she says, “but with the support of clients for what we’re doing, it’s an easier sell within law firms to get out of their comfort zone and really focus on this.”

Committing to diversity and inclusion can help woo the next generation, as well as boost the bottom line, says Nikki Gershbain, chief inclusion officer at McCarthy Tétrault (a unique role among Canadian firms – she reports directly to the CEO and is a member of the management team). “All the research shows that organizations that are inclusive are more productive, innovative and profitable, and the people who work for such organizations have higher morale, they’re more productive, and they’re more likely to stay with the organization.”

Sandra Aigbinode Lange worked as a Crown lawyer before joining McCarthy’s Calgary office in 2017, a move she credits in part to its inclusion programs. She says the firm’s formal work allocation program has led to some some high-profile assignments, including the chance to argue a case at the Supreme Court of Canada. Although Ms. Lange notes she sees no Black judges in Calgary and only a tiny handful of Black partners at large firms, she still sees the possibility of partnership in her future.

“I carry this weight of my Blackness, and specifically my Nigerian heritage, on my shoulders, because so many people have invested in me, and so many believe in me,” Ms. Lange says. And although she sees no examples to follow, “I just feel I’ve got to do it. To show this province, this country, this world that a Black woman like me is smart, capable and just as right for the job.”

Australia admits misstep over Islamic State suspect [citizenship revocation and statelessness]

Finally publicly admitted:

Australia failed to make basic checks before stripping a suspected Islamic State fighter of his citizenship, a senior official said Wednesday, an admission likely to call into question the legality of the move.

The country last month striped Neil Prakash of citizenship after claiming he was Fijian — prompting strenuous denials from the authorities in Suva and an embarrassing diplomatic rift.

Prakash is accused of being a member of the IS jihadist group, and identified as the 12th Australian dual-national to lose their passport over terrorism links.

He is currently in Turkey facing charges of joining the organisation.

A parliamentary intelligence committee on Wednesday grilled Home Affairs officials on the issue, asking whether they verified his status with Fiji or consulted experts in Fijian law before revoking Prakash’s citizenship.

“No, we did not” admitted senior department official Linda Geddes.

If Prakash is neither Fijian nor Australian he would now be stateless in contravention of decades old UN accords and Australian law.

A Special Counsel advising the government told the parliamentary committee he offered “strong advice” on the case, but would not go into detail.

The move against Prakash was touted at the time by hardline Home Affairs minister Peter Dutton as the ruling Liberal Party eyed its base supporters and May elections.

But it created an awkward backdrop for a recent landmark Pacific visit by Australian Prime Minister Scott Morrison.

Source: Australia admits misstep over Islamic State suspect

And in related news, lawyers express concern over expansion of Australian citizenship revocation policy towards those convicted of minor crimes:

Australian lawyers are afraid petty criminals and people participating in religious festivals could be rendered stateless under citizenship law changes aimed at homegrown terrorists.

Constitutional and human rights experts have also expressed grave concerns about the “irredeemable” bill being put forward by the federal government.

The Morrison government wants to be able to deport Australian-born extremists who are entitled to citizenship in another country.

But the Law Council of Australia fears the proposed powers would be disproportionately harsh and could breach international law.

Dual nationals sentenced to at least six years jail for terror offences can already be stripped of their Australian citizenship.

The coalition wants to scrap the six-year threshold and expand the range of offences it can rely upon.

The Law Council’s David Neal is urging the federal parliamentary intelligence committee to keep the existing triggers in place.

“Low-level offending, which is dealt with to finality in a local court, could be captured by laws that lead to citizenship cessation,” he told committee members in Canberra on Wednesday.

Dr Neal is also concerned the offence of “associating with a terrorist organisation” could capture people participating in legitimate social gatherings and religious festivals.

Constitutional expert George Williams believes tinkering with the bill could also capture religious pilgrims and business people who venture into politically-sensitive areas.

“There is no actual involvement in terrorism, there is no suggestion of disloyalty, but that would trigger under this legislation the possibility of revocation,” he told the committee.

Professor Williams said the bill would have a range of “extreme and unjustified” consequences and could make the community less safe.

“In fact, it may do some harm, particularly in the broader agenda of building social cohesion.”

The laws would also significantly lower the threshold around proving a person’s citizenship of another country.

Under the changes, the minister would only need to be “reasonably satisfied” a person may be entitled to citizenship elsewhere.

“As recent history demonstrates – in both the cases of members of parliament and the (Neil) Prakash case – determining existing foreign citizenship can be difficult,” Dr Neal said.

“Determinations based on predictions about future foreign citizenship – which may include decisions by foreign governments – are obviously fraught.”

The Morrison government sparked a diplomatic fight with Fiji over the summer break after stripping Prakash of his Australian citizenship.

The Islamic terrorist was born in Melbourne to a Fijian father but Fiji says he is not a citizen.

The federal government has indicated dual nationals who are stripped of their citizenship could languish indefinitely in immigration detention if other countries refuse to take them.

Source: Lawyers flag fears about citizenship laws

Lawyer versus consultant? Immigration data shows visa applicants have best shot with former

There may also be some selection bias involved (e.g., nationals who engage lawyers may be stronger candidates for visa approvals):

Foreign nationals who prepare their own Canadian visa applications are nearly as successful in being accepted as those who spend money on a consultant to do the job.

But chances of success are much higher if they hire an immigration lawyer to help get their study, work or visitor visas, according to immigration data obtained under an access to information request.

Canada received 342,154 temporary resident applications in 2017, the data shows. While 86 per cent of applicants declared themselves as self-represented, 6 per cent were represented by consultants and another 5 per cent by lawyers. The remaining 3 per cent hired Quebec notaries or used “non-remunerated” representatives.

Overall, 18.9 per cent of the applications were rejected. Those who prepared their own applications had a 19.3 per cent refusal rate, slightly higher than the 18 per cent among those who paid a consultant to do it.

In contrast, only 10.4 per cent of applications prepared by a lawyer were rejected. The refusal rates for applications prepared by Quebec notaries and unpaid representatives were 13.1 per cent and 10.1 per cent respectively.

Marina Sedai, chair of the immigration section of the Canadian Bar Association, said she wasn’t surprised lawyers had the highest success rate.

“Canadian lawyers’ rigorous education, legal analysis skills, and high ethical standards enforced by an effective regulator, have long been understood to result in better outcomes,” Sedai said.

“Lawyers’ culture of the law being a calling rather than a business means that although lawyers will often take the tough cases, they will also protect clients by advising them against hopeless cases.”

When it comes to the lower success rate for consultants, lawyers are quick to point out that group has lower educational requirements and a less robust regulatory regime than lawyers. For their part, consultants say the immigration data is too general and doesn’t give the full picture.

“It is based on the flawed assumption that all applications are equally complex. In reality, applications completed by unpaid representatives may be far simpler, thus having a much higher chance of success,” said the Canadian Association of Professional Immigration Consultants in a statement to the Star.

Currently, licensed immigration consultants must meet a minimum language requirement and graduate from an accredited immigration practitioner program, which takes about a year to complete full time. While only about 1,000 lawyers practise immigration law, there are five times more licensed consultants in Canada.

“Immigration lawyers typically have completed a four-year bachelor’s degree before undergoing a very competitive process for admission to law school. Law school degrees take three years to complete and are also no cakewalk. Then there is the bar admissions course which must be passed, the articling process, etcetera,” said Toronto immigration lawyer Ravi Jain.

“Many immigration consultants have only completed online courses at a community college. The education and training is just not comparable.”

The immigration consultants’ association, which has more than 2,000 members, said it’s pleased more people are using consultants and believed that’s due to the generally higher fees charged by their lawyer counterparts.

Regulatory bodies for lawyers and consultants do not mandate how much their members can charge clients, but fees can range from hundreds to thousands of dollars.

Jain, who is also vice chair of the bar association’s immigration division, said the success rate for lawyers would likely be even higher if not for the fact lawyers often take up very difficult and complex cases.

“A lot of my clients come to me after they have gone to a consultant or tried on their own,” Jain said, adding many are reluctant to lodge a complaint against their former consultant and prefer just to have him reapply.

“It’s much more difficult to obtain approvals when applications have already been refused,” he added.

Source: Lawyer versus consultant? Immigration data shows visa applicants have best shot with former

It’s hard out there for an immigrant; lemon lawyers make it harder | TheHill

Welcome any comments from Canadian immigration lawyers on the extent this is a comparable issue in Canada:

It’s hard out there for an immigrant. President Trump routinely demagogues the nation’s undocumented population.  Attorney General Jeff Sessions now leads an enforcement campaign centered around making life so unpleasant for undocumented immigrants that they decide to leave the country instead of facing the abuse.

In these times, immigrants need to be able to find help they can trust. Sadly, they also need to watch out when they call up a lawyer.

Our self-regulating legal profession does many things well, but we often struggle to police our own ranks. We each learned this lesson while representing immigrants on a pro bono basis while in private practice.

Like many lawyers, we gave our immigrant clients the same level of dedication and diligence as our paying work. Sadly, when we walked into immigration court, we often saw seemingly unprepared and unimpressive lawyering.

As law professors, we have seen similar problems with some immigration lawyers. We stay in touch with our driven, idealistic graduates. Some of them land at immigration firms. One individual worried about how to extricate himself from an unethical firm.

The managing partner would file baseless asylum claims and then task his young associate with defending them in immigration court. It forced a hard choice on a young lawyer: his ethics or his income.

Most immigration lawyers zealously represent their clients and help them achieve better outcomes than they would without representation. Research convincingly shows that representation usually improves an immigrant’s chances in our Byzantine immigration system.

One study found that represented immigrants are five times more likely to apply for relief and five times more likely to get it. But there simply are not enough good immigration lawyers to go around. So, some immigrants get lemons: lawyers who can actually make their chances worse.

While the research on immigration lawyers shows how much most of them help their clients, it also confirms the real problems within the immigration law bar that we’ve seen with our own eyes.

Researchers studying asylum cases found that the bottom 10 percent of immigration lawyers actually reduced the chance of relief so much that the applicant would have been better off without a lawyer.

Notably, the study controlled for the wildly unpredictable outcomes in asylum cases — some judges grant 95 percent of applications, and others deny 95 percent — a different problem that also must be addressed.

Immigrants face a dilemma: How do they avoid the lemons? They have no way of knowing whether they have hired one of the many good lawyers, or one of the lousy few. One group of researchers explained that “immigrants are simply in a terrible position to evaluate the claims made by lawyers and are often naïve about what lawyers can and cannot do for them.”

George Akerlof won a Nobel prize for showing how “asymmetric information” causes market failures. When sellers know more than buyers, buyers don’t know who to trust, and everyone suffers. Just like a few dishonest used car dealers make everyone mistrust used cars, a few bad immigration lawyers make people mistrust all of them.

Although measuring lawyer quality is difficult task, the immigration law bar has a serious quality control problem. One survey of judges by Richard Posner and Albert Yoon found that of all practice areas surveyed, “immigration was the area in which the quality of representation was lowest.”

Another survey of New York immigration court judges found that about half of the lawyers they saw provided either inadequate or grossly inadequate representation, and the worst lawyers actually make their clients worse off.

There are two ways to address this problem. Lawyers can and should police their own ranks by reporting unfit lawyers. But no one likes a tattletale. When one of us published concerns about this problem in the Wall Street Journal, the American Immigration Lawyers Association called it “fake news.”

Just like the “blue wall of silence” encourages good police officers to defend bad ones, good lawyers are reluctant to criticize bad ones.

We think reducing information asymmetry might also help. Immigrants deserve to know how often lawyers succeed. Immigration courts collect information about every case filed by every immigration lawyer. A public database providing that information to immigrants would help them find good lawyers and avoid bad ones. This would give immigrants a tool to distinguish between the reprobates and the righteous.

Of course, this isn’t a perfect solution. Statistics cannot tell the entire story. We trust immigrants to use the information intelligently. A lawyer winning only 20 percent of cases before a judge who denies 95 percent of all claims deserves a medal.

A lawyer winning 60 percent of petitions when most win 90 percent should be avoided. Great lawyers taking tough cases may show middling statistics. Despite this, immigrants should have information that might help them steer away from lousy lemon lawyers.

Whether we pursue this solution to the lemon problem or another, we must do more to deal with the bad apples in our midst. Far too often, professional self-regulatory organizations behave like cartels.

Although we see the problem as most pronounced in the immigration law bar, similar problems exist with criminal defense and other practice areas. We should make more information available to let immigrants themselves improve quality by making informed decisions about who to hire.

via It’s hard out there for an immigrant; lemon lawyers make it harder | TheHill

What’s Keeping Asian-American Lawyers From Ascending The Legal Ranks? : NPR

Useful analysis, including breakdowns by different Asian ethnicities, and the importance of role models:

In 2015, the California Supreme Court reversed the ruling [against non-citizens joining the California Bar – Chang was unable to become a citizen given the Chinese Exclusion Act of 1882]. “Even if we cannot undo history, we can acknowledge it and, in doing so, accord a full measure of recognition to Chang’s path-breaking efforts to become the first lawyer of Chinese descent in the United States,” the judges wrote in their decision.

“That case got me thinking about the fact that Asian-Americans have been formally excluded from the legal profession as Chang was, and of course, [with] all the informal barriers,” says California Supreme Court justice Goodwin Liu, who reviewed the case. He said he realized he hadn’t seen a comprehensive study of how Asian-Americans came into the legal profession — so he took it upon himself to lead one.

In the study, Liu shows that though Asian-Americans are the fastest-growing minority group in the legal field, there’s still a stark lack of Asian-American lawyers in top positions in this country.

In 2015, 10 percent of graduates at the top-30 law schools were Asian-American, according to the study. Yet they only comprised about 6 percent of federal law clerks and 4 percent of state law clerks. Compare that to white students, and you’ll see a striking contrast: 58 percent of students from top-30 schools were white, but still landed 82 percent of all federal clerkships and 80 percent of all state clerkships.

Liu and his co-researchers also found that while Asian-Americans comprise 5 percent of lawyers in the U.S. and 7 percent of law students, only 3 percent of federal judges are Asian-American, and three out of 94 U.S. Attorneys last year were Asian-American.

The study noted that some obstacles Asian-Americans face include a lack of access to mentors, as well as stereotypes of Asians as being unable to assimilate or socially awkward.

“Whereas Asian Americans are regarded as having the ‘hard skills’ required for lawyerly competence, they are regarded as lacking many important ‘soft skills,’ ” the researchers wrote.

The study also pointed out that there’s a dearth of Asian-American lawyers in public service roles:

“It is notable that few Asian Americans appear motivated to pursue law in order to gain a pathway into government or politics. … Greater penetration into these public leadership roles is critical if the increasing number of Asian American attorneys is to translate into increasing influence of Asian Americans in the legal profession and throughout society. A major challenge is to encourage Asian American lawyers to pursue public service roles and to eliminate barriers for those who do.”

When asked to break out the data further by ethnicity, Xiaonan Hu, one of the researchers, told NPR that she noticed Filipino-American and Indian-American respondents were more likely to say they enrolled in law school to work in government or politics than, say, Japanese-American or Korean-American respondents. Two percent of respondents who were Japanese-American and 3 percent of Korean-Americans ranked the entry into government or politics as a top motivator for going to law school, compared to 11 percent of Filipino-Americans and 5 percent of Indian-Americans.

So what could account for this?

“It doesn’t seem like it’s as much about those groups [being] MORE interested in government and politics, but less averse to it,” Karthick Ramakrishnan, a professor of political science at the University of California, Riverside, wrote in an email.

“For Filipino Americans, many of them made advancements in government and local politics in California and Hawaii, where they have large populations and there were relatively long-standing Filipino communities,” Ramakrishnan, who also runs the project AAPI DATA, said.

“Indian Americans, by comparison, are much more recently arrived in the United States (with their population booming in the last 2 decades). That normally would mean that we would not expect them to be involved in politics. But, past research indicates that prior experience with democracy and high English proficiency tend to mean greater political participation.”

And while there are rampant structural issues that need to be addressed, Chris Kang, former National Director of the National Council of Asian Pacific Americans, said that emphasizing role models can sometimes be powerful.

When Kang was working with the Obama administration as Pres. Obama’s Deputy Counsel, he helped appoint federal judges. Kang said he and his team tried to highlight each new justice’s ethnicity and gender.

“It wasn’t just, ‘the first Asian-American judge in the district,’ but we really went and highlighted ‘the first Vietnamese-American, the first Filipino-American,’ ” Kang told NPR.

“If there’s someone of your particular ethnicity — or an Asian-American woman, [where there’s] only been two to the federal bench before — seeing now a dozen of them starts to make a difference,” Kang said, “and you start to think as you’re going into law school or you’re a lawyer considering what’s next for you, that a judgeship might be possible.”

Source: What’s Keeping Asian-American Lawyers From Ascending The Legal Ranks? : Code Switch : NPR

CCDI Study shows law firm senior leadership still largely white and male

Interesting study by the Canadian Centre for Diversity and Inclusion.

In general, I find a three-year time series too short to show much change given the nature of promotion and equivalent processes (a minimum of five years is better, ten is more reliable).

However, it is nevertheless informative in terms of its breakdown by seniority  and a good initiative:

Despite much talk over the last decade around boosting diversity and inclusion in law firms, women and racialized lawyers continue to be under-represented in the Canadian legal profession with Caucasian men continuing to far outnumber those two groups in senior leadership roles, according to a study from the Canadian Centre for Diversity and Inclusion.

Level Chan says a lack of women and racialized lawyers at the top of law firms is a matter of retention and advancement. He says there continues to be “over-representation” at the associate and entry-level areas of the firms but they don’t tend to stay.

In fact, the study shows Caucasian men who responded to the survey have the greatest odds of being an equity partner, and they are seven times more likely than racialized women to be an equity partner.

The study, “Diversity by the Numbers: The Legal Profession,” conducted by the CCDI in partnership with the Canadian Bar Association, shows the representation of minority groups in the legal profession has not changed substantially over the last three years that the CCDI has been collecting data. In 2014 and 2015, 73.99 per cent and 76.88 per cent of senior leader respondents were men. In 2016, 75.34 per cent of senior leader respondents to the survey were men and 90.78 per cent of senior leaders were Caucasian.

In 2014 and 2015, 89.28 per cent and 88.91 per cent of senior leader respondents were Caucasian respondents, respectively. Another statistic of note is that 81.9 per cent of senior leaders are equity partners.

“Results from 2014, 2015 and 2016 do not show a shift towards a more diverse and inclusive workforce, particularly in partner and leadership roles,” the report states.

The study, sponsored by Borden Ladner Gervais LLP, Cassels Brock & Blackwell LLP, Dentons Canada LLP, McCarthy Tétrault LLP and Miller Thomson LLP, shows women and racialized respondents are under-represented in equity partner and senior leader roles and over-represented as associates and articling or summer students.

Authors of the report say factors contributing to the perpetuation of these numbers include “inflexible working conditions, rigid firm culture, high client expectations and overall economics of the profession.”

While some might point to a tough economy since 2008, Deanna Matzanke, director, measurement and analytics at the CCDI, says the economy is a “significant red herring” and what the report shows is “a compelling validation” that the current law firm model makes it difficult for women and minorities to rise to equity partner positions.

“ . . . the process of billable hours, the emphasis placed on client relationships, and the hierarchal ‘Old Boys Club’ network in law firms do not support or foster a diverse and inclusive environment.”

The report goes on to say that women find themselves in a difficult position when faced with trying to balance family needs with law firm demands. Also, “ . . . lawyers from minority groups do not have the same social and cultural capital to network and find mentors who relate to them, because the pool is very small.”

That means many leave the law firm culture for more flexible and accommodating environments elsewhere, such as in-house roles or solo practice.

Matzanke, a lawyer herself, says the results of the study are disappointing and show that diversity and inclusion are not being successfully implemented in the legal profession, despite the fact the pool of potential lawyers in law school has increased in diversity and at the associate level at law firms shows fairly high diversity.

The majority of racialized respondents in the legal profession are Asian, while all other groups show very small representation.

A total of 11 firms from nine provinces and one territory participated in the 2016 survey. Firms were invited to participate directly by CCDI via the Law Firm Diversity and Inclusion Network, and the Canadian Bar Association sent a letter to all members.

“There’s nothing surprising here really,” says Level Chan, a partner with Stewart McKelvey LLP in Halifax and the CBA’s representative on the CCDI’s advisory committee.

“As to why we’re not moving the needle much, I think it’s a matter of retention and advancement, and as you see particularly with women, there continues to be over-representation at the associate and entry level areas of the firms, but we’re not keeping them. I think that in turn is translating to having fewer people available for senior roles and as equity partners. That is the ongoing issue we’ve had in the legal profession.”

Source: Study shows law firm senior leadership still largely white and male

Link to the study:Diversity by the Numbers: The Legal Profession

Law Society report proposes changes to combat systemic racism

Will be interesting to see whether the report and its recommendations are fully or partially adopted, and the degree to which they are implemented.

But it all starts with data and pleased that one of the recommendations is for just that:

Law Society of Upper Canada working group is proposing that the regulatory body step in to ensure that law firms and other legal workplaces move to eradicate systemic racism in the legal profession, and to penalize those that fail.

The Challenges Faced by Racialized Licensees Working Group spent the past four years studying the issue and holding consultations and will present its final report and recommendations Thursday to the Law Society’s benchers — its board of directors — for information purposes. A final vote is expected on Dec. 2.

“The challenges faced by racialized licensees are both longstanding and significant,” reads part of the report, obtained by the Star. “In our view, the Law Society must take a leadership role in giving legal workplaces reasonable deadlines to implement steps that are important to bring about lasting culture change.”

The report goes on to say: “It is clear from the working group’s engagement and consultation processes that discrimination based on race is a daily reality for many racialized licensees; however, many participants stated that they would not file a discrimination complaint with the Law Society for various reasons, including fear of losing their job, fear of being labeled as a troublemaker, and other reprisal-related concerns.”

Lawyer Paul Jonathan Saguil said it’s important that the public, as well as lawyers, see themselves reflected in the legal profession.

“What happens when you get to the pinnacle of the profession — people who are applying to the bench or to tribunals? As you go up the pipeline, you get people who are more and more removed from what is the true diversity of the Canadian population, and that has an impact,” he said. “For lawyers, too, it has a psychological impact when they don’t see themselves reflected at their firm, and wondering how they can succeed.”

Saguil, who is Filipino-Canadian, mentioned as his role model Superior Court Justice Steve Coroza, believed to be the first Filipino-Canadian appointed to a superior court.

“Once you see someone advance in that position, you start hoping that one day you can achieve even a modicum of that success,” Saguil said.

Major recommendations — most of which the working group envisions would be implemented over the next three years — include requiring legal workplaces of at least 10 licensees (which include lawyers and paralegals) to develop and implement a human rights/diversity policy, “addressing at the very least fair recruitment, retention and advancement.”

A representative of each of those workplaces would also have to complete an equality, diversity and inclusion self-assessment of their office every two years, according to one proposal.

Another recommendation proposes “progressive compliance measures” for workplaces that don’t implement a human rights/diversity policy, and/or workplaces “that are identified as having systemic barriers to diversity and inclusion.”

The 15-member working group, made up of benchers, proposes a “gradation of responses,” from meeting with representatives of legal workplaces to discuss concerns, “to disciplinary approaches if there is deliberate non-compliance with requirements, despite multiple warnings, or no efforts are made to address systemic barriers.”

Observers say change is needed now more than ever, as the number of racialized lawyers in Ontario has doubled — from 9 per cent of the profession in 2001, to 18 per cent in 2014. According to the 2011 census, 26 per cent of Ontarians identified as racialized.

“The overall goal is to change the culture of the legal profession,” said lawyer Raj Anand, co-chair of the working group.

“We had a very important issue that has not been addressed — certainly not to this extent by any law society in Canada . . . I don’t think there’s any law society that has gone to the point of mandatory measures in order to effect culture change.”

Anand said he hopes other law societies can use his working group’s report as a model to change the culture in other provinces.

“The issues are still serious ones, and enough time has passed. It’s time to put in place some base minimums. These are not radical recommendations.”

Progress would be measured by annually providing legal workplaces of 25 licensees or more with the self-identification data of their firm’s lawyers and paralegals. That information, compiled by the Law Society, would then allow the firm to compare its numbers with the profession as a whole.

Licensees would also be asked to answer questions about inclusion at their workplace every four years, and a summary would be given to the workplace.

The Law Society would also be required to publish an “inclusion index” every four years that would contain the legal workplace’s self-assessment information, demographic data and information collected from the inclusion questions.

The group also recommends mandatory training for every licensee on equality and inclusion, to be taken once every three years, as well as improvements for mentoring.

Source: Law Society report proposes changes to combat systemic racism | Toronto Star

It’s 2016, but women – even in elite professions – still earn less

Having data helps sharpen the conversation:

In the legal field, a 2016 survey of compensation paid to in-house counsel found that female lawyers who work as corporate counsel earn 15 per cent less than their male in-house counterparts.

“This wage gap cannot be fully explained away by the assertion that ’men have been in the workplace longer,’ as men have fewer average years as both legal counsel and senior counsel and [yet] still earn a higher base salary,” according to a report by the Canadian Corporate Counsel Association and The Counsel Network, a national legal recruitment firm. “For in-house counsel, the gender wage gap is real and it is not shrinking… In all sectors, except government, where woman have wage parity, men earn a higher salary than women.”

(The average annual salary for all in-house counsel surveyed is $165,000.)

A 2015 survey conducted by Chartered Professional Accountants Canada uncovered similar results: “At the total level, female members have a median total compensation of $99,000 versus $120,000 among their male counterparts.”

Some – but not all – of this is explained by the preponderance of men in more highly paid executive roles, said the CPA, which also provided a compensation breakdown by role and gender, based on 2014 pay stubs.

Examples: median annual compensation for male accountants in chief financial officer roles was $180,000, compared with $140,000 for females; $125,00 for male treasurers, compared with $98,000 for females; $133,000 for male professors, compared with $109,000 for females; $250,000 for male partners in accounting practices compared with $190,000 for females.

“It’s a fairly recent thing that we have looked at the data and gone on the record with it. That’s obviously good, because just recognizing that there is a problem can lead to change,” Robin Taub, volunteer chair of the CPA Canada’s women’s leadership council, said in an interview.

The most recent in-house counsel compensation survey – the fourth such survey conducted since 2009 – “was shocking” in that the gender pay gap has not narrowed “and it’s 2016,” said Dal Bhathal, Toronto-based managing partner of The Counsel Network.

This time, however, perhaps because it is 2016, “I can tell you that, absolutely, in the in-house counsel community, it has definitely received attention,” Ms. Bhathal said.

At a time when the federal government has its first-ever gender-balanced cabinet and securities regulators now require publicly traded companies to disclose the percentage of women on their boards of directors and in executive positions, the issue of gender equity is not only on the corporate radar, it’s on the agenda.

Source: It’s 2016, but women – even in elite professions – still earn less – The Globe and Mail

Discrimination a daily reality for visible minority lawyers in Ontario, report says

Not surprising that the legal profession is not immune from discrimination issues:

The blunt Law Society of Upper Canada report, titled “Challenges Faced by Racialized Licensees,” contains some disquieting findings.

“Overt discrimination and bias are a feature of daily life,” the paper concludes. “Racialization is a constant and persistent factor.”

Ontario’s legal profession has seen an increase of visible minority lawyers in recent decades. Latest figures indicate about 17 per cent of lawyers — and 28 per cent of paralegals — are not white, up from about 9.2 per cent in 2001.

In 2012, the law society set up a working group to study the issue of racism and discrimination in its ranks.

Despite the dramatic increase in minority numbers, professional acceptance is still hard to come by, according to the study.

Alienation, lack of entry and promotion opportunities and disrespect are among the problems “racialized” lawyers say they face.

“The challenges faced by racialized licensees have an impact on the reputation of the legal professions, access to justice, and the quality of services provided,” the report states.

Minority participants in the study complained that colleagues, judges and clients commonly assumed they were incompetent or ineffective. They talked about being shut out from professional opportunities or excluded from workplace social gatherings.

Last year, for example, Ontario’s top court found that two black lawyers had been racially profiled in 2008 when an administrator at a lawyers-only lounge at a courthouse in Brampton asked them — and only them — to identify themselves.

Discrimination a daily reality for visible minority lawyers in Ontario, report says | Toronto Star.