In November of 2017, Ryan Alford wrote an article for CBC  titled “An arm of the state should not be forcing lawyers to declare their values”.  In that article, Alford was bringing attention to a systemic threat to freedom of expression.

Alford was objecting to the Law Society of Ontario’s requirement that all lawyers be required to create and abide by an individual Statement of Principles that acknowledges an obligation to promote equality, diversity and inclusion generally…and more particularly, that this obligation resides within the principle that all lawyers and paralegals play a vital role in Accelerating Culture Shift.  Following is from the Law Society of Ontario’s website

All lawyers and paralegals play a vital role in Accelerating Culture Shift, one of 5 strategies adopted by the Law Society  to address the barriers faced by racialized licensees.

As part of this strategy you are required to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. (Recommendation 3(1) in the Challenges Faced by Racialized Licensees Working Group’s Final Report)

The Law Society will ask licensees to report on this in their 2017 Annual Report.

This requirement applies to all Law Society licensees. A licensee is anyone who is licensed to practice law or provide legal services and includes retired licensees, licensees working outside of Ontario and licensees not currently practicing law or providing legal services.

Creating a Statement of Principles 

The Law Society has developed resources to help in creating your personal Statement of Principles. 

We have provided templates of two sample statements. To satisfy the requirement you may adopt and abide by either statement. Please feel free to modify the statements or create your own that meets the requirement. Statements of Principle must be in writing.  

 

Lest the typical accusation that Mr. Alford  objects to the dictates of the Law Society merely because he harbours racist, sexist or some other objectionable -ist sentiments, he is careful to state in his CBC article that

I am not against the Law Society’s efforts to promote equity, diversity and inclusion. More importantly, I’ll happily take action voluntarily to promote these goals. Note it well: actions, not words.

My problem is not with the Law Society’s policy, but with its methodology. The LSUC can and should promote these values in the context of regulating lawyers’ conduct. But as an arm of the state, the Law Society cannot coerce me or any lawyer to say what my values are.

The reality that the consequence for objecting to compelled speech is to be, in Alford’s words, “branded as somebody with retrograde social values” is a very real and dominant theme in the current debate between those who wish to protect freedom of expression and those who defend various modes of compelled speech.

 

The wording of the Law Society of Ontario’s mandate and the underlying systems which produced it bear close scrutiny as it suggests a systemic threat to freedom of expression and its corollary, freedom of privacy.

Here are a few questions to ponder regarding the Law Society’s verbiage:

  1. Do we accept the idea that lawyers and paralegals, as a whole set, play a vital role in Accelerating Culture Shift?
  2. Do we accept the definition of Culture Shift and the idea that it ought to be accelerated?
  3. Do we accept that the Law Society of Ontario is an appropriate arbiter of Culture Shift?
  4. Is a “personal statement of principles” truly personal if it is templated?
  5. What are the consequences to an individual lawyer for not complying with this mandate?
  6. What about lawyers who disagree with or object to any single detail of the current version of this mandate or any subsequent extension of it?

Note that this requirement applies not only to practicing lawyers in Ontario but also to retired licencees and those not practicing.  The mandate is clear…it is never acceptable to step out of line.

And this same society developed a committee called the SPOT Team which reviews measures taken by and supports available at the Law Society to address discrimination and harassment in the professions.  All of this in response to what is recognized to be one of the least reliable of assessment instruments, a survey:

The SPOT (Steps, Progress, Opportunities, and Tactics) Team was created in response
to the reports of discrimination and harassment coming out of the Articling Experience Survey. Benchers Cathy Corsetti, Jacqueline Horvat, Barbara Murchie, Tanya Walker, and Jonathan Rosenthal were appointed to review existing Law Society supports and consider what, if any, additional actions should be taken.

Who was surveyed?  Fresh legal graduates:

The survey was aimed at lawyers who had completed their articling in 2014-2015, or
2015-2016 and those candidates who were in the 2016-2017 articling process at the
time of the survey.

Which brings to mind one final question…do we think the socio-political climate within Canadian academic institutions might meaningfully affect the socio-political climate of Canadian society as a whole?

References and Further Reading

  1. https://www.lsuc.on.ca/with.aspx?id=2147504036
  2. https://www.cbc.ca/news/opinion/law-society-statement-1.4418125
  3. https://www.canadianlawyermag.com/legalfeeds/archive/2018/07/13/
  4. https://www.canadianlawyermag.com/legalfeeds/author/anita-balakrishnan/law-professor-ordered-to-pay-costs-to-lso-in-challenge-of-statement-of-principles-15982/
  5. http://www.lawsocietygazette.ca/news/spot-team-identifies-action-items-to-further-address-issues-of-discrimination-and-harassment/
  6. http://lso.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2018/Convocation-Apr-2018-SPOT-Team-Update.pdf

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