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.
Exchange principles behind the tension involved in outsider-integration
Modern anthropologists and linguists, starting with thinkers such as Lévi-Strauss, have helped us see the role of exchange between different societies in the development of the “civilized” mind from the “savage” (the French word sauvage having the connotation of “state of nature,” as opposed to the pejorative). Recent studies involving primates have shown that economics and morality are intertwined, especially when it comes to the “other” among animals of the same species. The structural absence of a real exchange of mutual advantage in the applied model of outsider-integration means we are taught or told to suppress anti-outsider behaviour. Suppression of a behaviour without an exchange can become a source of tension among members of the established order. The perceived unfairness taps into an automatic anti-social response. In the Ontario legal establishment, this has translated into a diversity and equity model that reluctantly shares access to the profession by non-traditional groups such as women and minorities. Come join us, but don’t upset what we have, is the overt message.
Use of Equity and Diversity to renew legal professionalism
So many of the legal disputes or problems in which lawyers are engaged are rooted in friction among competing views and historical grievances which have both contributed to Canada’s growth and which have also held it back. We cannot solve every ill, but we have the ability to raise a new generation of lawyer. The reality is that many lawyers lack professionalism because the regulation through penal measures creates a permissive zone of non-egregious unprofessional behaviour. The black market which operates just outside criminal prohibitions show that penal codes by themselves are insufficient to promote good conduct. A similar market dynamic exists within the legal profession.
The permitted unprofessional behaviour can then be used as part of the lawyer’s armament in getting what his or her client wants out of a transaction or dispute. Many clients want a “tough lawyer,” whatever that means. We have all witnessed the brusque lawyer who makes a show of himself or herself at an examination for discovery or a deal negotiation. Some of this is compensation for lack of legal smarts, but the fact that some very smart lawyers behave this way suggests that there is more than a niche market for “jerks.” We regulate against discrimination and insensitivity, as if these elements of professionalism are not legal skill per se. We may tolerate a bigot or a sexist because he or she “is a good lawyer,” when in fact the lack of understanding of human interaction should give anyone of failing grade, given the purpose of law to mitigate aggression and avoid misunderstandings. The method of promoting professionalism can therefore be as important as the ideals themselves. The stick needs to be accompanied by the carrot.
The civility deficit that prompted recent rule changes and high-profile discipline prosecutions resulted from a popular gunslinger myth within sectors of the bar that rudeness and intimidation were part of the skill set for which the client paid the retainer. In response, the reaction to the civility movement has often been hostile. Law Society prosecutions have spread fear that one can never be politically correct enough, that one can never adequately accommodate clients or others with physical or mental “challenges,” and that lack of vigilance can lead to Law Society complaints. Much of the hostility to civility has come from leaders of the bar, those in whom our junior lawyers see role models.
The emerging divide between plaintiff and defence factions in the insurance bar also reflects a problem whose roots are not skills-related but cultural. Here, as it has been in the United Kingdom, the defence side has perceived the rise of a “compo-culture” from an economic underclass seeking distribution of wealth. The plaintiff side has cultivated a caricature of the “accident victim” whose status as victim is defined by severity of injury and not by the legal liability of the alleged perpetrator, identified often with a “bad” insurance company. Interestingly, there are some efforts among the bright lights of both sides of this dynamic who are encouraging less prejudgment and more intelligent dialogue in the handling of these disputes.
One approach to benefit from the civility project’s course is to consider the shift toward teaching civility as a legal skill, and not an external limit to the lawyer’s exercise of skill. In the professional jurist, most traditional legal skills are enhanced forms of cognitive skills performed by lay people. We don’t just read; we review and analyze. We don’t just hear; we listen. We don’t just engage in dialogue; we persuade. We don’t ‘wing it’; we prepare what we say. We don’t just muddle along; we ask for help if we don’t understand. These are all core legal skills which are active versions of passive abilities non-lawyers have and use in both private and civic participation. If we are now to consider equality, inclusion, diversity and cultural competence as elements of legal professionalism, we have to build on the resources we have available that tell us we can create model behaviour that requires active learning and practice of these concepts.
Equity and diversity ultimately mean more than boosting participation. They involve broadening the perspectives of all participants, including those who have already gained entry, in order to permit all participants reap the rewards of bringing in new lawyers from different backgrounds.
Agenda for the new legal professional
Adults learn professionalism best when the motivation to act professional comes from internal rather than external factors. In the context of this discussion, lawyers need to learn to practice this branch of professionalism because of what they get out of it:
- Learn and practice equality in dealing with lawyers of the other gender or from other cultural backgrounds, not because it is a social good or imposed norm (Charter, Human Rights Code, Law Society Rules, etc.) but rather because understanding how the other lawyer perceives an issue will foster an exchange with the other lawyer, so that one will also have a better likelihood of being understood by the other. Increasingly, smart clients want clients to be culturally intuitive. The market demand for jerks and lawyers with limited cultural background may be waning.
- Learn and practice diversity and inclusiveness, not just by bringing those of other races, cultures, faiths, etc., into the law firm or institution, but also by asking to be admitted into the language and practices of the “other” person or group. Why do we embrace ethnic cuisine but eschew ethnic family law? Is there a reason for this? How can the law we apply resolve normative principles from outside Canada, in a way that does not trample on hard-fought standards of human rights?
- Learn and practice what it is to be a Canadian lawyer. The bar in a country founded by a conflict between England and France over the conquest of a continent populated by aboriginals remains uneducated about the interaction of official languages, bijuralism, and liberal economic vs. communitarian concepts of property and natural resources. Most of us still don’t get this. Perhaps it is a failing of our educational system that we drill high school kids in advanced trigonometry but don’t teach them the significance of Roncarelli v. Duplessis or the legal travails of Donald Marshall, Jr. to living and breathing in Canada. We should expect better from those having undergone a legal education.
Learn and practice cultural competence by developing an understanding for the client’s concern as well as the adversary’s. This exchange is important in many ‘mundane’ matters where the lack of cultural competence by professional representatives leads to “two rights making a wrong.” We see this phenomenon writ large in legal conflicts such as the Trinity Western law school accreditation debate, in which each side can only see its protected right or freedom as innate and the other’s protected right or freedom as a matter of mutable choice. Unfortunately, the bar on both sides of that debate have not contributed much apart from their own personal opinions. This is not entirely meant to be a criticism; rather, an illustration of widespread lack of cultural competence even among leaders of the bar, and of a problem that lawyers should have helped to resolve without acrimony and without recourse to litigation. Instead, lawyers have fanned the flames of conflict and have written self-serving justifications for using referendum-politics to raise the stakes in the name of “leadership.” The inability to resolve a dispute about a law school over a fault line between equity and faith has said to the Canadian public that lawyers cannot be trusted in such matters. Starting with the leadership of our profession, we need and expect better understanding of the differing perspectives that lead to such conflicts. Otherwise, what use are we?