Wrangling over statement of principles shows lawyers far from challenging racism within: Paradkar, Contrary position of Alford
2017/11/09 Leave a comment
Shree Paradkar on the Ontario law society controversy over the obligation to promote equality, diversity and inclusion:
Although the motion was debated and passed in December 2016, it has been playing out like the pitched battles that spill out on digital media, when demands for equality are framed as violations of free speech, but this time with legalese — and legal action — thrown in.
“We think that the debate has been framed as freedom of expression and conscientious objection — in a vacuum,” said Shawn Richard, CABL president. “The question has to be asked — well, what are you conscientiously objecting to? You’re conscientiously objecting to reducing discrimination? You’re conscientiously objecting to promoting diversity? Inclusion? Equality?”
One law professor called the statement of principles an Orwellian dictate.
Another called it an unconstitutional compelled speech.
The law society says it is not policing lawyers’ thoughts or beliefs, it is asking that their conduct be in accordance to long-standing codes.
“It’s an obligation to promote equality, diversity and inclusion generally, which is nothing more than the obligation lawyers have already,” Paul Schabas, the law society treasurer, told the Law Times.
Do the society’s rules spell this out? Apparently, it’s not just a matter of clicking Control F to find the right words. The injunction filed Monday says this obligation is not supported in the existing code of conduct.
The words “acknowledging” and “promoting” are causing most grief. On one side, “Why can’t lawyers simply acknowledge their obligation to equality?” On the other, “Why are they being told they have a duty to promote equality?”
Emphasizing an obligation to equality in a plan to fight racism is a step so mild it begs the question, why was it even made?
That came down to a question in a 2013 survey asking lawyers to rate their support of this statement:
“It is important to reduce discrimination, but the professional’s main responsibility is to the client and making sure they’re being served by competent lawyers and paralegals.”
This is an obviously problematic statement that linked competence to race. It suggests either you have a competent (white) lawyer or a racialized (incompetent) one.
Richard had a problem with it right away. “I don’t think reducing discrimination and being served by competent licensees is an either/or proposition, but the statement presumes that to be true.”
When a large majority of white and minority licensees either strongly agreed or somewhat agreed with that statement, it showed Richard, “you have to start with what our obligations are.”
The contrary position, expressed by Ryan Alford:
A Law Society requirement meant to help combat systemic racism in the legal profession is facing major push-back.
Lakehead University law professor Ryan Alford filed paperwork in court Monday seeking an injunction to stop Ontario’s legal regulator from mandating that all lawyers and paralegals adopt a statement of principles indicating an obligation to promote inclusion and diversity.
In a notice of application filed in Superior Court, Alford said he is seeking a declaration from the court that the requirement is “contrary to the rule of law in that it lacks a proper legal foundation,” and is also not supported by the Law Society of Upper Canada’s own rules of professional conduct.
This move follows the announcement last month that Toronto lawyer Joe Groia, a member of the Law Society’s board of directors, would be bringing a motion at the December board meeting seeking an exemption for “conscientious objectors” to the requirement.
Both Alford and Groia have argued that the requirement is “compelled speech,” although they state that they believe in the values communicated by the statement of principles.
Alford said in court documents that he believes making the statement mandatory is a violation of a lawyer’s freedom of expression, and, therefore, is unconstitutional.
“The core of this case is the limits of governmental power,” Alford told the Star in an interview. “Because once the Law Society enacts regulations backed by sanctions, it is acting as the government.”
He said he hopes the Law Society voluntarily suspends the statement requirement until a court can rule on its constitutionality.
Multicultural Meanderings 