A Critical Look at the LSO’s Statement of Principles
The legal profession continues to tear itself up about the new Statement of Principles (SOP) enacted by the Law Society of Ontario (LSO). If you’re new to the issue, Solomon wrote an excellent summary of the debate.
In short, the SOP requires that every lawyer acknowledge an “obligation to promote equality, diversity and inclusion”. Those opposed say that the LSO should not be in the business of telling anyone what values to adopt, even if no one actually opposes those values. Those in favour say that racism runs deep in the legal profession and this is the smallest step they could possibly take to address it.
But no one seems to have asked: why are we only considering the smallest step? The SOP, while probably useful as a symbol of a profession finally willing to change, is unlikely to itself change much of anything for racialized licensees. Moreover, there are at least two steps the LSO could take that would both be more effective at addressing racism and raise essentially no concerns about the LSO’s mandate. If bencher candidates are serious about creating change, maybe they should be focusing on what comes after the SOP?
What Does the SOP Do?
1. Lawyers Have to Say … Something
First, there is not one SOP. Each lawyer can create their own SOP, which can include essentially anything they want, as long as it acknowledges their obligation to promote equality, diversity and inclusion. They don’t even have to make their SOP public. They merely have to tell the LSO that they have created and are abiding by one.
2. There Is No Enforcement Mechanism
Since any given SOP need not have any tangible commitments, lawyers could change literally nothing about how they operate after adopting one. Even if an SOP included commitments, since the LSO does not have to be told what those commitments are, they cannot hold lawyers to following through.
None of this is to say that the SOP is bad. The fact that some lawyers are concerned about proclaiming equality shows that it’s sorely needed as a first step. But we should all stop kidding ourselves that it is anything more than a symbolic measure. Change will only come when we start working on the next steps.
What Else Could We Do?
1. Mandate Blind Recruitment
Outside of law, there is evidence that removing names from applications can improve racialized candidates’ chances of getting an interview. In the legal profession, evidence is mixed, but mostly because there are other sources of bias. Removing names from applications would not help OCI candidates at in-firm interviews, or eliminate the inequalities caused by “fit”, but at least this would be a tangible step towards fairer hiring. And since no one challenges the LSO’s right to dictate how the summer hiring process works, this is clearly something they could do.
2. Make Large Firms Publish How Many Racialized Licensees They Hire
“What we count counts”, and one easy thing to count is the fraction of associates and partners at big firms who are visible minorities. Very soon, federal distributing corporations will have to disclose “information respecting diversity” about directors and senior management. Why should law firms not be held to the same standard?
This would technically be compelled speech, but almost every medium-to-large firm already posts the names and pictures of all their lawyers on their websites. Requiring them to inform the public of what they are already doing does not compel them to say anything in particular. And if their clients decide that this fraction is important in deciding from whom to purchase legal services, they can easily raise that number.
I know that nothing I have said is going to affect the kerfuffle about the SOP. In the foreseeable future, racialized students and lawyers will continue to be told that promoting equality is a dangerous precedent. But once people accept that racism needs to be addressed – however long that takes – maybe we can start advocating for some real change?
