The Law Society of Orwell
Never before have I or many other lawyers I know been so disappointed with the body that governs our profession, the Law Society of Ontario. For the first time in my 37- year legal career, I’m actually ashamed of it. Rather than helping ensure a robust and free- thinking legal profession, the society is becoming a kind of Orwellian thoughtcontrol institution that insists its members put into writing a “Statement of Principles” that “acknowledges” certain “obligations” never before imposed on any profession or citizen in Canada. What’s more, these “obligations” are not in fact found in the society’s rules of professional conduct.
This is a very dangerous development if we value an independent legal profession as a cornerstone of a free and democratic society. A profession that obliges its members to sing in unison can’t say it supports independence.
This development stems f rom a 2016 l aw society committee report recommending that all lawyers and paralegals in Ontario should “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.”
Each member’s statement must be filed with the society in the next few weeks, if they wish to continue in their chosen profession.
The society’s new policy is so abhorrent because it’s an attempt to compel speech by lawyers and paralegals. It also goes well beyond what our human rights laws actually and properly require.
The Ontario Human Rights Code says basically that all employers and service providers have an obligation not to discriminate on prohibited grounds such as race, gender, religion, etc. This includes both directly discriminatory acts and systemic discrimination, when an ostensibly neutral policy improperly disadvantages some groups.
The society’s Rules of Professional Conduct say that, “A lawyer has a special responsibility to respect” human rights laws. Presumably that’s because of lawyers’ central role in protecting people’s rights.
The new policy, however, goes much further than the code or any previous professional obligations. It asserts that lawyers and paralegals now have an obligation to “promote equality, diversity and inclusion generally.”
This is not what the code requires of Ontario citizens, businesses or professionals. The law does not force citizens to “promote” anything or anybody. We have freedom of belief and freedom of expression. We’re not required to espouse any particular viewpoint, no matter how benign. Until now — for lawyers and paralegals.
The society’s new policy misstates and twists human rights law for the seeming purpose of imposing unprecedented obligations on its members, through the back door of a required “Statement of Principles.”
The society has responded to concerns such as these by issuing a guide, whose doublespeak could be right out of Orwell’s 1984. The guide says things like:
“The Statement of Principles need not i nclude any statement of thought, belief or opinion.” ( What t hen is a “Statement of Principle”?)“The obligation to promote equality, diversity and inclusion does not prescribe specific actions that licensees will or must take…” ( Note the use of the word “specific.”)“The reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations in respect of human rights…” ( This is simply false. The policy’s language is not found in any existing law or professional rule.)“Licensees are not required to make their Statements of Principle public…. Accordingly Licensees are not required to disclose the content of their Statement of Principles to the Law Society but are only required to confirm its existence.” ( What about the law society’s audit powers? But, if this is literally true, is this exercise not devoid of any real meaning?)
Part of the problem is the ambiguity of the new policy. How can anyone be required to promote something as vague as “equality, diversity and inclusion generally”? Equality among whom? Regardless of what differences? Diversity among whom? What kind of diversity? Inclusion of whom and in what activities?
It is easy to say these are laudable goals for the legal profession. It seems like saying motherhood is a good thing. But, while we might all agree with that, and while we must not discriminate against mothers or those who want to be mothers, nowhere does the law require ( nor should it) that anyone is obligated to promote motherhood. Nor should anyone be required to write a statement of principles about how one will promote motherhood.
While it’s easy to see how the governors of the law society got lulled into adopting the law society committee’s recommendation, they should have known better. It is quite a big step from the obligation to avoid discrimination to requiring the promotion of certain beliefs or agendas. And it is several leaps to force all members of a profession to sing in unison their “statement of principles.” Especially when the “principles” go beyond any obligations ever demanded of any citizen or any profession in Canada.
The law society’s doublespeak notwithstanding, this is a very dangerous development if you believe in freedom of expression, and if you value a robust and freethinking legal profession.