THE GREAT CONCEIT

It’s been more than a month since the Law Society of Upper Canada (Ontario’ bar association) told the province’s lawyers that they would have to create “an individual Statement of Principles that acknowledges obligation to promote equality, diversity and inclusion” — both “generally” (i.e., in their everyday lives), and in their “behaviour towards colleagues, employees, clients and the public.”

Some Ontario lawyers have already declared their intention to ignore the new rule — a gesture I applaud. Whether or not Ontario’s lawyers think their bar association should be acting as a shadow human rights tribunal, the new requirement makes no sense — because it serves as an enforcement mechanism for a non-existent mandate: There is nothing in existing law society rules that requires lawyers to become goodwill ambassadors for some arbitrary grab bag of civic virtues.

Nor should there be. Why “diversity” and not, say, “patriotism,” “freedom,” or “moral hygiene”? Not so many decades ago, bar associations in the United States tried to make lawyers write out affirmations that they weren’t communists. Even many anticommunists were properly disgusted by this. Compelled speech always feels inherently totalitarian — even when the speech that’s being compelled reflects values you sincerely believe.

The least that could be said for the old Cold War McCarthyists was that they were sincere in their fear of communism. But in the current climate, one senses the law society is far more interested in signalling the enlightenment of its own staff. The whole exercise seems like a sort of condescending virtuesignalling kabuki. Yes, the vast majority of Ontario lawyers will follow the new edict — because the law society has the bully power to take away a lawyer’s ability to feed his or her family. But these lawyers will do so in a spirit of cynical detachment, copying out “model statements” from the Internet the same way casual Catholics mumble out Latin prayers.

It’s tempting to write off the whole thing as just another exercise in political correctness. But it’s not. Since the days of the Renaissance guilds, the legal profession has always had a puffed up view of itself. It’s not just the robes, the wigs, and the gratuitous Latin jargon. It’s also the myth that lawyers comprise a moral vanguard within society, with sacred duties that extend beyond the daily humdrum of litigating divorces and drafting contracts.

I should specify that it’s the pompous atmospherics and conceits of the legal industry I dislike, not the lawyers themselves—who usually are no more and no less odious than all the rest of us.

For a few years during the late 1990s, I worked as a lawyer in New York — helping Park Avenue clients structure their corporate holdings and transactions. My firm’s clients were Christian, Jewish, Arab, black, white, gay, straight. Never once did any of them evince the slightest interest in my ideas about diversity or inclusion. I suspect they would not have cared a whit if I were a fullon bigot, provided I successfully diverted their domestic income streams into low-tax jurisdictions. They didn’t want to know about my inner life, nor I theirs. I was a fee-for-service worker plying my trade for a salary, no different from a cook, a tailor or a journalist.

When my relative remodelled her basement a few years ago, she hired a contractor who, a week in, began discussing bizarre theories about 9/11 and the Jews. Not my her cup of tea, but the contractor knew his drywall, and finished up ahead of schedule. So no one called the Ontario College of Trades to complain about his worrying failure to support “diversity and inclusion.” Much in the same way that I don’t interrogate my locksmith about his views on the niqab, or check to ensure that my local funeral director doesn’t put his kids in Little Hiawatha costumes on Halloween. That’s not how things work in a free society. You don’t threaten someone’s livelihood because he doesn’t wear the right ribbon or use the right hashtags.

Of course, lawyers often are put in positions of trust. They might have to manage funds placed in escrow. Or work at close quarters with emotionally vulnerable mothers who have been separated from their children by social workers. But stealing money from a client (of any race), or going Weinstein on a despondent mother, is illegal behaviour, full stop. You don’t need take-home essays to teach people that.

It is in the classroom where the professional hubris first takes root. The Ivy League law school I attended was so focused on the esoteric wonders of my thenprofession, in fact, that my professors often didn’t bother teaching us much actual law. Instead, we took courses like “Critical Race Theory: A Legal Perspective” and “Situating the Constitution in Philosophical Discourse.” My Civil Procedure class consisted almost entirely of a star pro bono litigator telling stories of how he’d forced the U.S. government to admit more refugees. One of my friends wrote a term paper on baseball as criminal-law metaphor. By the time I graduated, I knew less about law than your average Good Wife addict. And I had to spend months cramming at a commercial summerschool course before I could pass the New York State bar.

First-year law students are encouraged to believe they’ll spend their careers protecting the indigent from capitalism and inventing novel legal arguments to protect minorities from discrimination. At Yale, we spent a lot of time in loving exegesis of iconic civil-rights cases, such as Brown v. Board of Education, which served to cast the profession in heroic terms. Thus did we internalize professional archetypes that bore almost no relation to the workaday life of a lawyer — the equivalent of a nursing school where students dedicate their attention to the diaries of Florence Nightingale. A week ago, I attended my 20th law school reunion. There were some professors and judges in the mix. But just about everyone else in my class has become some kind of corporate or law-firm functionary. (Which is fine, by the way.)

All of which is to say: the legal profession’s age-old tradition of collective hubris isn’t new. What is new is the form this hubris now takes — thanks to a breed of hyperprogressive social activists who feel justified in co-opting the prerogatives of a regulatory monopoly as a means to force white-collar workers to lip-sync doctrinaire liberalism. It’s creepy. It’s coercive. It’s presumably unconstitutional. And it’s an embarrassment to the law society.

It also invites the question: Why is it that lawyers act in this way — and not, say, accountants or engineers?

My own theory is that it comes back to the necessarily cynical nature of legal practice. The rules of legal ethics generally don’t allow lawyers to tell bald-faced lies. But the requirement of “zealous” representation within our adversarial legal model serves to encourage lawyers to shade so many truths, in so many ways, that the final effect usually is indistinct from plain lying. Indeed, any skilled lawyer can argue both sides of a case with equal vigour, a habit of mind that understandably comes off to non-lawyers as moral nihilism. In this climate of distrust, lawyers’ high-flown affectations comprise a sort of coping mechanism.

In layman’s terms, it’s a bunch of people who act like they are all better than us. No doubt, there’s a fancy Latin expression for this. But since my legal days are behind me, ordinary English will serve to make my point just fine.