The Law Society of Upper Canada (soon to be renamed something less historic), prepares to require its members ― of whom I am one ― to supply it with
individual Statement[s] of Principles that acknowledge [our] obligation to promote equality, diversity and inclusion generally, and in [our] behaviour towards colleagues, employees, clients and the public.
Bruce Pardy has written an excellent op-ed in the National Post to denounce this imposition as an essentially totalitarian attempt at thought control by the legal profession’s governing body. (He and Jared Brown also discussed the issue with Jordan Peterson; I am not fully on board with some of the things said in that conversation, but it is worth listening to.) While prof. Pardy’s op-ed makes the essential points, I will canvass a couple of further issues on this blog. In this post I will discuss the scope of the Law Society’s demand and what seems to me be the lack of legal justification behind it. I will have at least one other post to address the freedom of expression and freedom of conscience issues the demand raises, and probably another one about some broader concerns regarding the regulation of the legal profession.
The first point I want to make here is that it is important to be clear about just how far the purported obligation that the Law Society wants us to acknowledge extends. (I say “purported” because, as I shall presently explain, the obligation is, for the moment, a fictional one.) It is not merely a requirement that we act consistently with the values of equality, diversity, and inclusion insofar as they are embodied in legislation in force for the time being. No “statement of principles” would be necessary to accomplish that. The idea is to make us go beyond what the law actually requires. Yet in a free society people cannot be forced to do things that the law does not require, still less to hold or uphold beliefs.
People in free societies disagree ― including about the value and, even more so, about the scope and implication, of things like equality and inclusion. (Just compare human rights legislation in different jurisdictions. The differences between these laws are testimony to disagreements that can arise even among those who accept the general principle of such laws.) These disagreements are resolved for the time being by the enactment of legislation, and it is antithetical to the Rule of Law to demand that people who might not share the values, or the version of the values, that underpin the legislation in force for the time being act on those values beyond what the legislation actually requires.
Worse yet, the purported obligation is said to exist not only in the course of our practice of law (and any “behaviour towards colleagues, employees, clients and the public” that we engage in qua lawyers), but also “generally”. The fact that, as the Law Society’s “FAQ” repeatedly state, the obligation is said to fall not only on those engaged in legal practice but on all licensed lawyers, including, for instance, those who are retired, reinforces the natural reading of the obligation as covering aspects of our lives that go beyond the practice (and business) of law ― perhaps our every waking moment. This, once again, is utterly at odds with the idea that the demands that a free society makes on its members are limited, and typically do not extend into a certain private sphere, except of course to restrain actions that would actually violate the rights of others.
In concrete terms, I take it that, according to the Law Society, I have a duty to devote my scholarship to the promotion of equality, diversity, and inclusion. Certainly any topics or argument deemed, by the Law Society, to be antithetical to these ideas, would be verboten. Perhaps I must devote my personal life, and not only my professional activity, to the promotion of the Law Society’s preferred ideals. There is, after all, no natural limit to the generality of the word “generally”. Will the Law Society police my Twitter and Facebook accounts to see if they are sufficiently egalitarian, diverse, and inclusive?
The second point I want to make here is that it is not clear what the source of the Ontario lawyers’ purported “obligation to promote equality, diversity, and inclusion” even is. So far as I can tell, neither the By-Laws of the Law Society nor the Rules of Professional Conduct impose one. The closest they come to doing so is in commentary to Rule 2.1-1, which provides that “[a] lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity”. The commentary states that
[a] lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.
Of course, the Commentary is not the Rule. But, in any case, “recognizing diversity”, “protecting human dignity”, and respecting the law ― all in the course of practice of law ― are much lesser obligations than promoting diversity and inclusion, and not only in one’s practice but generally.
Now, the “five strategies to break down barriers faced by racialized lawyers and paralegals” adopted by the Law Society from one of which the demand for a “Statement of Principles” derives, also say that
The Law Society will review and amend, where appropriate, the Rules of Professional Conduct … and Commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal … profession.
But even if the Law Society “will review and amend” the relevant rules, it does not seem to have done so yet. Thus, quite apart from any substantive issues with the Law Society’s demands, the fact is that the governing body of Ontario’s legal profession is demanding that lawyers “acknowledge” obligations that do not yet exist in law. Since the Law Society is now considering its rebranding options, may I suggest the Franz Kafka Appreciation Society?
But there is more. Even if, or when, the Law Society wants to amend its Rules of Professional Conduct to actually impose an generalized obligation to “promote principles of equality, diversity and inclusion”, it is not clear that will have the authority to do so. The Law Society Act, as it now stands, provides that
[i]t is a function of the Society to ensure that all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide. (Section 4.1(a))
It adds that
[s]tandards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. (Section 4.2.5)
It is not clear to me that the imposition of an obligation to promote certain values, be they ever so laudable, and especially of an obligation that extends beyond the practice of law or the provision of legal services are within the Law Society’s lawful powers under this legislation. The standards of professional conduct that the Law Society is authorized to impose have to be “appropriate” for the provision of legal services (and “should be proportionate” to the objective of regulating the provision of legal services). Admittedly, “appropriate” is a capacious word, and the deferential approach of Canadian courts to reviewing administrative decision-making means that it might take a lot of persuasion to get a court to hold that policing a lawyer’s beliefs and actions unrelated to the actual practice of law is not an “appropriate” way of regulating the provision of legal services. Still, I for one have a hard time seeing how it is appropriate for a professional regulatory body to transform itself into a committee for the promotion of virtue and the prevention of vice and, should it eventually come to litigation, it might be worth trying to raise this argument, in addition to those based on the Canadian Charter of Rights and Freedoms, which I will discuss in the next post.
In any case, quite apart from what the courts may or may not do, the Law Society, if anyone, shouldn’t be trying to strain the limits of its statutory powers. The Law Society Act provides that it “has a duty to maintain and advance … the rule of law” (s 4.2.1), which among other things requires public authorities to act within their lawful powers ― not to test their boundaries. The Rule of Law also prevents public authorities from imposing on those subject to their coercive powers obligations that do not exist in law. On many views, at least, the point of these strictures is to preserve a sphere of autonomy within which individuals can act without being supervised or hassled by the authorities. The Law Society’s attempt to make those subject to its regulations into the torchbearers for its favoured values is at odds with these commitments, which one would hope most lawyers would adhere to even apart from their statutory recognition. One can only hope that the profession will resist its regulators, who have sacrificed their longstanding principles in a quest to make everyone embrace newer and supposedly more progressive ones.
UPDATE: Annamaria Enenajor insists that I was wrong to claim that the Law Society is demanding that we “supply it” with copies of the “Statement of Principles” that it wants us to produce. I take the point that the Law Society’s explanation does not actually say that we must supply it with our statements. I find the idea that we merely need to tell the Law Society that we have created the statements it demands, without proving that this is so, more than a little odd, which is why it hadn’t occurred to me originally, but it could well be correct. That said, I do not think that whether or not the Law Society wants to see our statements changes anything to the analysis.
This article was originally published on Double Aspect, Professor Sirota’s award-winning blog.