Later today, I will have the privilege of participating in a working group of the Chief Justice of Ontario’s Advisory Committee on Professionalism tasked with modernizing the basic principles of professionalism for lawyers. High in priority is the importance of integrating equity, diversity and cultural competency into the package that lawyers must offer the public.
Historically an afterthought
The equity and diversity file has historically been an afterthought, tucked into the discussion after other ‘Wonder Bread’ aspects of professional merit are given full airing. This has been a fault of those leading the discussion. It is time to turn the agenda on its head. The result is that we have promoted equity and diversity through conventional methods, with negligible effect in the bar and judiciary compared to other sectors of Canadian business and labour. We have, till now, invoked skills of application more than cognition, policy handbooks more than classroom training, stick more than carrot.
As a point of reference, we have espoused (and imposed) virtues such as tolerance and belonging in order to foster greater participation within an established social order. “Become one of us” actually implies a one-way benefit to the inductee in being introduced. While we often follow up the welcome with a belief and/or statement that “diversity makes us better,” we rarely take active steps to achieve this betterment.
It came to my notice that my last post on the British Columbia Law Society’s handling of the accreditation of Trinity Western Law School may have appeared at odds with a prior entry encouraging a negotiated solution. In the September 26 post, “B.C. Law Society abdicates self-governance in favour of non-governance,” I stated that the decision to refer the decision to a referendum before the expiry of a statutory 12-month period was an abdication of the Law Society’s duty to govern the affairs of the legal profession. Further, the referendum option can only be invoked by a petition from the membership, not the governing benchers.
It should also be noted that the Law Society handed the decision over to the governed members, with regard to a matter that does not affect them internally as members, but rather a matter of external public policy over prospective members. In regard to such external policy, only the governors should be considered to have original jurisdiction and expertise, not the governed. The benchers should have stuck to their decision to accredit, or should have reconsidered it. If they maintained their accreditation, they would nevertheless owe the public a duty to work with the university to find accommodation for those who suffer exclusion. If they reversed their decision and adopted the Ontario position against accreditation, they would owe a duty to the university to work toward an accommodation of religious freedom.
In the June 12 item, “End the Trinity Western Law School Deadlock without Litigation,” I urged the Law Society ought to consider the 12-month period as a time to negotiate a wording of the controversial Community Covenant that accommodates religious freedom and equality rights.
From comments and tweets readers have kindly provided, I have connected the dots and see these posts, combined, define a categorical imperative for the bar in Canada to negotiate a resolution. B.C.’s governing body deserves criticism over its September 26 decision. In Ontario and Nova Scotia, it is up to the university to suspend the judicial review proceedings to allow the Law Society of Upper Canada and the Nova Scotia Barristers Society to open a channel of communications. It is really time for the Canadian legal profession to stop the “lofty and passive” approach and show the Canadian public that lawyers can do what the public expects us to do: peacefully resolve seemingly intractable differences and enable both freedom and equality in the nation’s civic affairs. If we do not do this, or at least fail trying very hard, we do not deserve the privileged and independent position we hold in Canadian society.
This afternoon, the Law Society of British Columbia voted 20-10 to hold a referendum on the issue of accreditation of the Trinity Western University. This came after a vote of 9-21 against deciding to overturn its previous decision in April to grant accreditation.* That first motion arose from a non-binding resolution of a special general meeting of the entire B.C. Bar, held in June. A third motion, to defer any decision, was obviated by the decision to hold a referendum.
In deciding to hold a referendum, the B.C. benchers have abdicated their responsibility as the directors of a self-governing profession. Either they should have stood by their original decision to grant accreditation, or they should have reversed their decision based on the interventions made at the June special meeting. Instead, they have decided to distribute the decision-making authority to the general membership.
While this may seem ‘democratic’ in a populist sense, atomizing a decision-making power to the membership is not democratic because the public has entrusted the legal profession to govern itself. The Law Society derives its authority to govern in this instance not from the electors but from the people of B.C. The election of benchers is not only an act of selection but of submission to the public interest in exchange for the monopoly over legal services. Since the public has no voice in the process apart from legislative amendment of the statute and the appointment of a handful of lay benchers, a voluntary referendum not mandated by the statute exceeds the Law Society’s jurisdiction requiring it to be governed by benchers. In this regard, the B.C. Law Society’s decision was not only unlawful. It also showed a lack of understanding of the purpose of law societies.
Henry Higgins, in My Fair Lady, famously sang, “Why can’t a woman be more like a man?” For Higgins, an elocution teacher who traded in British class prejudice by offering to improve clients’ social standing through posh talk, the education of a woman was essentially a troublesome Alternative Business Structure (ABS) – he could work with the moving parts but the brain remained a mystery.
The Final Report of the Canadian Bar Association’s Legal Futures Initiative, released today, appears to be a multifaceted atlas mapping out a strategy for renewal of Canada’s law industry. There are many good thoughts in it, including a premise that “The future for lawyers is as much about ethics and values as it is about economics and value.” That equation is somewhat betrayed by the simple textual metric that the word “value” in the sense of economic value is used more than twice as often than in the sense of ethical values. Review of the report from beginning to end bears out this imbalance. In reality, there is no shortage of Darwinian zeal when it comes to the core message: Change or Die.
A report in the Saskatoon StarPhoenix that the University of Saskatchewan plans to eliminate its law library and integrate the collection with three other campus libraries into the main university library prompted protest from many in the legal academy. One of the requirements set by the Federation of Law Societies of Canada (FLSC) is that a law school maintain a law library (2009 FLSC report pp. 5, 11 and 42).
The argument that many students and practitioners now gain access to legal resources online ignores the importance of the tangible written word on the rule of law. A row of books, even ones that are “out of date,” serve to remind the public, as well as judges and lawyers, that even the common law is engraved in modern versions of stone tablets for all to view, not suspended in an oral tradition guarded by a few oracles.