Picture this: British Columbia, 1984. A 24-year-old woman is the first black person in 20 years to earn her law degree from the University of British Columbia. She finds an articling position at a small local firm.
“I am in my first court case, they sent me to court, they prepped me, and I had never thought of the fact that my race could affect my client,” she says. “I’m the only black person, my firm sends me off, I have a white client; a corporate client, his son got into trouble. And I’ve gone over everything with my boss. I’m partway through my little trial and every instinct in me tells me something is wrong. . . . [The judge] asks me what my authority is for even asking questions of the witness. Well I don’t know about you, but in law school they tell you this is the right of counsel, to ask questions. I’m standing there going ‘this is a nightmare, what does he mean I can’t ask questions?’ So I proceed to just talk over him, and he threatens me with contempt of court.”
She did all she could for her client, a scared 17-year-old boy. Then she spent a few hours collecting herself and went back to the office. “One of my bosses said, ‘You know what? We didn’t think you’d have any problem.’” The lawyer told her they’d noticed the judge had issues with black-accused. “And I said well why didn’t you tell me? It would have made a difference because I spent part of the time doubting my own assessment. He said, ‘No, but you’re not an accused, you’re our articling student.’ That tells you everything that’s wonderful about these guys because it didn’t occur to them that I could experience it. But it says everything about what people don’t understand about the nature of racism when you step into those spaces as a black person by yourself.”
That story lies behind Joanne St. Lewis’ decision not to pursue her desired career in private practice litigation. Today she is a professor at the University of Ottawa law school and a leader in the bar, including being the first black woman elected as a bencher to the Law Society of Upper Canada.
Picture this: Toronto, mid-1990s. A young Muslim lawyer, despite never having known a lawyer and not knowing one firm from the next, gets summer and articling positions at a big Bay Street shop. Having a great interest in immigration issues, including starting an immigration law clinic during law school, she convinces her articling principal to funnel all the firm’s immigration work her way. Still, she says “I thought there’s just absolutely no way I’m going stay in a big firm because back then I did not fit into the culture. In 1995 and 1994, 1996, they were not accommodating to diversity, and I had some very interesting incidents occur, which I’m grateful that don’t occur anymore.” Once called, she eschewed Bay Street, opting instead for boutique firms and was able to build a strong practice encompassing many areas of immigration law.
Fast-forward a few years; a number of friends approach her and suggest she starts an immigration practice at one of the big national law firms because they see a need she can fill. “Honestly I thought, ‘there is no way I will ever fit into a big law firm culture. I tried. It was horrible. I’m not going back.” Even though she has a series of interviews set up at the firm, she won’t even write a resume to take with her “because I was so determined that I would not fit in. Because I just had the negative predisposition that I felt 13 years earlier and then I had heard some horror stories from other people at big firms, and I thought ‘I don’t fit in. I’m not like that.’ And I have very different political views, I have very different social views. And I’m certainly not going to start playing golf.”
But Yusra Siddiquee did get the job and says she’s never been happier. She is now a partner at Ogilvy Renault LLP and one of five Muslim lawyers in the last three years who’ve become partners at Bay Street firms.
Both of these stories reflect the shift taking place across the Canadian legal landscape. The last decade has seen a remarkable change in the face, literally, of those who practise law. Siddiquee, who is acting chairwoman of the Canadian Muslim Lawyers Association, says in the last 13 years or so, the organization went from 10 members to more than 200, the largest group being articling and law school students. Similarly, the South Asian Bar Association has more than 150 members, “representing pretty much all dimensions of the legal profession,” according to its president Ron Choudhury, an associate at Aird & Berlis LLP in Toronto. In just the Greater Toronto Area, there are groups representing lawyers from a variety of ethnic, religious, and other diverse communities, among them the Canadian Association of Black Lawyers, the Federation of Asian Canadian Lawyers, the sexual orientation and gender issues committees of the Ontario and Canadian bar associations, and the Indigenous Bar Association for Indian, Inuit, and Métis trained in the law.
According to the 2006 census, more than 16 per cent of Canadians were members of a visible minority group. In 1981, when data for the employment equity-designated groups were first derived, the estimated 1.1 million visible minorities represented 4.7 per cent of Canada’s total population. The visible minority population further increased to 3.2 million in 1996, or 11.2 per cent of the total population. Between 2001 and 2006, the visible minority population increased at a much faster pace than the total population. Its growth rate was 27.2 per cent, five times faster than the 5.4-per-cent increase for the population as a whole. And those numbers don’t even include Aboriginal Peoples, gays or lesbians, or disabled persons. While society is changing rapidly, the profession is not morphing quite as fast. “We are so behind in global sensitivity,” says Vern Krishna, the first, and so far only, South Asian treasurer of the LSUC. “We are not trailblazers.”
Jason Leung, president of the Federation of Asian Canadian Lawyers, says: “I’m starting to see more and more Asian Canadians becoming partners in law firms of all different sizes. But that being said, certainly the percentage of Asian lawyers who are partners is not even close to being representative of what’s in the general population. . . . [P]robably about roughly one fifth of the population is Asian in Toronto and certainly there is much less than one fifth of partners in most law firms are Asian.” Others echo Leung’s sentiments about the small numbers of equity-seeking lawyers in the top levels of law firms. Frank Walwyn, president of CABL, estimates there are no more than a dozen black partners on Bay Street. Naiomi Metallic, a Mi’kmaq lawyer who is part of Eastern Door in Nova Scotia, says in that province she knows of only two aboriginal lawyers in private practice; she is one of them. Choudhury, who is of Indian descent, says young lawyers may say to themselves: “‘I don’t notice people who have an accent in these [large] law firms. And would it have been easier for me to work in a smaller law firm in Brampton? Probably because, the clients would be similar to me.’ I’m not saying that they don’t do that, but often times you might also find people going there because that’s where they’re welcomed.”
The number of law firms serving particular communities, be they ethnic, religious, or in any other niche is increasing (see Law Office Management, page 19). Anecdotally, the numbers of lawyers from equity-seeking groups have gone up quite dramatically in government (due largely to equity legislation) and in the corporate world (due to the growing number of companies with robust equity and diversity initiatives). Private practice generally lags behind. In a by-no-means-scientific poll, Canadian Lawyer asked more than 100 law firms across the country if they had equity and/or diversity initiatives. About 15 responded but only a handful reported having diversity initiatives; a few more had equity policies but no specific diversity initiatives. Until recently, women have been the focus of most research and equity initiatives in the profession. Only in the last few years have broader diversity committees sprung up.
ON THE BANDWAGONBlake Cassels & Graydon LLP is one of the firms that hopped on the diversity bandwagon earliest, in the late 1990s. It set up a formal diversity and equity committee in 2000 and for the past two years has been the only law firm named as one of Canada’s top diversity employers by Mediacorp Canada Inc. Its commitment to diversity has also contributed to Blakes recognition as one of Canada’s top 100 employees for the past five years. “I think there’s always been intellectual commitment to the idea of diversity,” says Mary Jackson, Blakes’ chief officer of legal personnel and professional development. Diversity is part of everything the firm does from hiring and orientation to training and communications with clients. “I think for me,” she says, “diversity is effective when it’s not just a separate thing; it has to be integrated into everything you do so it’s just something you think about when you’re dealing with people, so that you don’t make cultural assumptions. And you try to make it a place where everybody can thrive regardless of their background and recognize that people have their differences [which is] a positive thing. I mean it sounds trite, but I actually really believe that.”
Stikeman Elliott LLP has had a formalized diversity committee for five years, but it is largely in Toronto. Its other offices don’t have formalized groups, says Lorna Cuthbert, chairwoman of the Toronto diversity committee. What has made its initiative successful, she feels, is having a strong 15-member team that includes associates, partners, and other staff in the firm. Like other firms that have embarked on a concentrated path to include formal diversity initiatives, Cuthbert says their mandate is plain and simple. “One, we want to attract the best and brightest. And two, we want to keep them.”
A number of other national and regional firms have diversity initiatives of varying sizes and complexities, but our research has shown the majority do not. While many others have equity and diversity policies, they frequently do not translate into active promotion of diversity and inclusion. One firm that is taking its diversity program to a higher level is Fraser Milner Casgrain LLP, a national law firm of about 550 lawyers. After creating a program, the members of its diversity committee realized they didn’t have any way to really gauge the success of their endeavours. “So the metrics become important. And we were very reluctant to roll out programs and initiatives and efforts, and frankly, expend resources and time and money on doing them, and have no idea whether we’d gotten anywhere. And so, we needed some accountability to ourselves in what we were trying to do,” says Kate Broer, co-chairwoman of FMC’s national diversity and inclusiveness initiative.
As a result, FMC — the only Canadian law firm named as one of the 25 best employers for new Canadians in 2009 — conducted a firm-wide survey last November. It was a comprehensive employee satisfaction survey but, in what may be a first for a large Canadian law firm, it also included a portion on self-identification in various equity-seeking groups, such as gender, disability, visible minority status, lesbian, gay, bisexual, or transgender, and aboriginal status. “What’s important is how to measure the experience of our people in the firm, and to determine whether there are differences in experience based on some of the common identifiers,” says Broer. The survey was conducted over a two-week period by a third party but prefaced with what was essentially a marketing campaign to get lawyers and staff on board. The result: “We had a 78-per-cent response rate across the firm, which is — as I’m told by the experts — extremely high, especially for a first-time survey,” she says. FMC plans to conduct these surveys on an ongoing basis, perhaps every year or two. Results will be used to identify “action-planning” items across the firm including the diversity and inclusiveness group.
FMC is the first firm to collect metrics voluntarily. Miller Thomson LLP, ranked the 10th largest firm in Canada in Law Times’ 2009 Top 20, planned to do so in its first firm-wide diversity survey in September. The firm, which only set up its diversity policy and launched a committee in 2008, decided to conduct the voluntary survey “to establish a benchmark to help orient the committee’s focus going forward in certain areas, and those areas were for planning in education, in business development, in recruitment, and in community involvement,” says partner and diversity committee chairwoman Gita Anand. Like FMC, Anand says the firm had a third party conduct the survey and planned to send out a “communication piece” to lay the groundwork for the survey. “We’re actually going to launch it in a three-day thing called ‘diversity days,’” Anand said in August. The plan was to give staff and lawyers a two- to three-week period in September to respond.
FMC and Miller Thomson are unique in their efforts. The only other law firms Canadian Lawyer was able to identify that collected demographic statistics about their lawyers are in Nova Scotia, where it’s mandated by law. Law firms are not only required to have employment equity policies but must report their statistics on gender, visible minorities, aboriginals, disabled people, and others to the Nova Scotia Barristers’ Society if they want to work for the provincial government. The report to the NSBS looks at the numbers of lawyers in the firm broken down into specific groups such as indigenous black, Mi’kmaq, persons with disabilities, women, and visible minorities. Respondents must report on the firm’s overall profile, student and articling clerk recruitment, associate appointment, and partner promotion: all broken down by categories.
As a result, firms there are very cognizant of the demographic makeup of their lawyers and staff and the push is always on to make the numbers more diverse, says Suzanne Rix, the professional personnel partner at Cox & Palmer. However, most don’t have strong diversity initiatives in place yet. At McInnes Cooper, Bradley Proctor, the partner in charge of recruitment and development, says the firm is just starting to get its diversity initiative underway but it’s still in the developmental stage.
In addition, it’s mandatory for every Nova Scotia lawyer to answer a self-identification question on their member’s annual report; although they can pick as an answer “I choose not to answer this question.” Quebec started asking a similar voluntary self-identification question a couple of years ago. Ontario will start this January. British Columbia only asks lawyers to self-identify if they are aboriginal.
STATISTICS ARE A FUNNY THING In the United States, practically every firm of any size has its diversity statistics widely available either through NALP, the Association for Legal Career Professionals, or at Vault.com. Do a simple search at nalpdirectory.com, click on a firm name, and up pops a wealth of information about who works in each firm. Do the same with NALP’s Canadian directory and all you get is the gender divide. Even the trailblazer firms in Canada, when asked, would not make their statistics public. Broer says FMC made a commitment to keep the results anonymous because “we want to be very cognizant and careful that we don’t make our people reluctant going forward to participate in some way.” None of the big three firms in Nova Scotia would publicly share their firm’s demographic breakdown either. Canadian Lawyer approached a number of other national firms about participating in an internal survey of their firms as part of a case study on the firm’s diversity initiatives, but none would volunteer.
Firms had various reasons why they weren’t willing to make their statistics public. Both those that are collecting and even those that aren’t argue statistics could be easily skewed. Some said they did not want to be ranked. When asked if they thought providing such statistics would show the firm was serious about diversity and inclusiveness issues, more than one firm said if their demographics weren’t great it would hurt rather than help them. Others weren’t willing to collect numbers at all, even firms with robust diversity initiatives. In more than one instance, firms having programs showed they were serious about diversity, and having lawyers and staff involved and students asking about it was good enough. “I’d love to tell you I have some beautiful mathematical formula, I don’t,” says Blakes’ Jackson. “But I would say I sit at the table of the executive committee, and now diversity is just something that it’s part of when we do our priorities initiatives for the firm. It’s always on there. . . . It’s just become very mainstream, and I think to me that’s the greatest recognition that it is successful.”
Charles Smith, who served as an equity adviser to both the Canadian Bar Association and the LSUC and is now a university lecturer, says all the excuses come down to one thing: fear. “I’ve heard from firms when I was doing some work, they’re afraid of the discussion, frankly, they’re afraid it’ll be rancourous and so they . . . look over and they say ‘Well, we’re not going to go there.’ It raises the spectre of employment equity . . . and they translate employment equity as rigid, affirmative action that is irrespective of competence, which is a red herring.”
Internal statistics help guage progress. Proctor at McInnes Cooper says the firm is always cognizant of its statistics and trying to improve the diversity of the firm. Law firms may not generally be keen to keep track, but law students, equity-seeking groups, minority bar associations, and academics insist such measurements are imperative. Collecting demographic information is not groundbreaking; firms shouldn’t be shying away from it. Almost all firms collect statistics on gender — in even more detail now that more than 50 firms are part of the Law Society of Upper Canada’s Justicia project on the retention of women — and many lawyers see no reason why that process shouldn’t be expanded to include other information. “I don’t see why we can’t keep these statistics,” says Siddiquee. “I mean, for goodness sakes, on the census we have the question asked.”
Anecdotal stories of success are simply not enough. “If you just go and say that on an anecdotal basis, well a lawyer of course being a lawyer, will be like, ‘Well, where’s your proof? What basis do you have to say that? Or are you just going on some hearsay that you’ve heard?’” says Metallic, who clerked for Supreme Court justice Michel Bastarache and is an associate at Burchell Hayman Parish in Halifax. Put another way, “you clearly have to engage in empirical analysis or you’ve got no measurable benchmarks to move forward with,” says Lorne Sossin, a University of Toronto law professor and director of the Centre for the Legal Profession. Those benchmarks and employee comments and feedback are integral to creating environments where people want to continue working. “The value in tracking a series of metrics that look at not just the representation of diverse groups in your workplace, but also the experience of those diverse employees, really helps to focus attention on whether and what the issues are, and what progress is being made as a firm is putting in place policies and practices to help respond to those issues, says Canadian Deborah Gillis, vice president for North America of Catalyst Inc., an organization that began doing research on women in the workforce more than 40 years ago.
While most law firms are not collecting stats, law societies are starting to ask lawyers to self-identify in their annual member reports. When the LSUC in Ontario asked lawyers to answer a demographic question in 1996, there was an outcry from some members and the question did not appear again. However starting in January 2010, it will be asking the question again. Equity adviser Josée Bouchard expects it will not raise the same level of ire. “[I]n the last few years, we have asked a self-identification question in most of the surveys and studies that we’ve done with the legal profession. And we have had a very good response rate,” she says. The LSUC has also been collecting such information from students entering the licensing process since 2000 and has not encountered any rancour. The Barreau du Québec started asking a self-identifying demographic question on its members’ annual report last year. Fanie Pelletier, the Barreau’s equity adviser says because of the sensitivity of the question, they were expecting more negative reaction than they got. Of the Barreau’s 23,000 members, she says no more than a half-dozen called or e-mailed with concerns. “You know, it didn’t go that bad. And when we answered it, we tried to explain why we are collecting this information. Usually they said, ‘OK well thank you very much. I understand.’”
THE BUSINESS CASE FOR DIVERSITYBut why make a fuss about numbers and making the profession more diverse? Primarily because Canada is becoming a more diverse country and law schools are reflecting that. Law firms that show they have a place for lawyers with various backgrounds, abilities, connections, and points of view make them more attractive to the best and brightest students. As Milé Komlen, chairman of the sexual orientation and gender identity conference of the Ontario Bar Association, points out, law firms need to be more inclusive than they are now: “There’s a disproportionate number of students who don’t receive placements who happen to be members of disadvantaged groups such as visible minorities, persons with disabilities. So those statistics tend to suggest that because they’re disproportionate in terms of the number of diverse candidates, that there are barriers that exist. And I think as a profession we have obligations to ensure that we’re being fair and equitable with regard to how we treat each other and how we promote collegiality and camaraderie among each other.”
That includes changes in the way recruiting is done as well as other internal systems such as mentoring. “This whole concept of ‘fit’ of a candidate is really a front or an excuse to exclude people who don’t fit a preconceived mold of what a lawyer should be. And oftentimes [that is] the straight, white male or female who’s able-bodied and able to work 2,400 hours a year,” says Komlen. “So this whole concept of ‘fit’ in recruitment is actually a huge liability for law firms who are seeking to increase their diversity. I have a real issue with this whole notion of ‘fit.’ It’s just basically a code word for ‘exclusion.”’
St. Lewis, who as a professor works with students every day, says the idea of “fit” is a systemic problem. “I still find it really hard when students twist themselves in the most bizarre ways so that they can make that other person so comfortable, when it has nothing to do with their legal capacity, and their capacity to handle a file,” she says. “We should be well past that in 2009.”
In terms of mentoring, Walwyn, a partner at WeirFoulds LLP, says it’s key to retaining talented lawyers but many visible-minority and disabled lawyers don’t get the kind of mentoring they need to transition from associates to partners. “The reality is my firm did it right. I got training, and I got mentoring, and I got access to partners. I was invited into every meeting that the partner had with his or her clients. And you interact with the client, and clients eventually call you. So I’m lucky that way.” Not everyone is and young associates will leave big firms and go solo, move into smaller firms, or in-house if they feel they don’t have good opportunities. Walwyn says he’s heard countless stories of black lawyers who get disillusioned and feel they have no future in a firm. They move in-house to clients and “eventually they become the lawyers who are responsible for directing work to firms. So I can tell you, I’ve heard from some lawyers who’ve gone through this that they will never give their former firm any new work because of their experiences that they’ve had in that firm. They direct new files . . . to their contemporaries in other firms, but it is a wake-up call when you get that comment coming from an associate who has jumped to a client.”
Retaining and promoting diverse lawyers is also good for business. As clients move toward more formal processes for choosing service providers, they are more frequently asking about diversity in requests for proposals from law firms. The practice is widespread in the United States and becoming increasingly so in Canada. “We saw a spike in the requests for diversity information and RFPs go from two per cent in the 12-month period preceding mid-2007, to about 11 per cent in the period between mid-2007 and mid-2008,” says FMC’s Broer. The corporate world is embracing diversity more and more and company policies often need to be reflected in the services and products used by those corporations.
In the U.S., for instance, there is a movement called A Call to Action. Hundreds of corporate counsel have signed on to the declaration to improve diversity in the legal profession, which includes the following pledge: “We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area. We further intend to end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse.” The movement is nascent in Canada, with the effort launched at a small conference for in-house counsel in April. Another, bringing law firms and corporate clients together is scheduled for November.
Insurance company Aon Inc. is one of those clients starting to ask for demographic information from its legal suppliers. “We just completed an RFP for legal services in Canada and our questionnaire included questions regarding law firms’ commitment to diversity and examples of this commitment in action,” says Terrie-Lynne Devonish, chief counsel for Aon Canada. The issue is gaining prominence and it behooves law firms to change in order to serve their clients better. “Given the legal profession’s unique place in society, it is important that we represent, understand, and support the ever-growing diversity in our communities,” says Devonish. “It may sound like a cliché but the benefits are real and one only needs to look outside of the legal profession in other areas where there are ever-increasing examples [of] these benefits.”
At the April Call to Action meeting, Jeffery Hewitt, general counsel for the Chippewas of Rama First Nation in Ontario and president of the Indigenous Bar Association, says when he took on his position at Rama, he fired all the law firms on its roster because, essentially, they were not really responsive to the band’s needs. It was unconscionable to him that large law firms were charging the client to “learn” about them. He said if the client was a well-known hotel chain, law firms wouldn’t be charging them full hourly rates to learn the legislation pertinent to providing proper service. “I, as the client, wanted to run the show,” he said. “I, as a native person am telling you as a big firm what I need. One of those things was working with firms that are open and adept at working with us.” Rama runs one of the largest casinos in Ontario and is a big client with a host of legal needs, as are many First Nations in Canada, says Hewitt, but big firms are not vying for our business. “We don’t see them at big aboriginal gatherings, but I do see them at other trade shows because they understand those markets.”
Having lawyers with varied backgrounds reflects the clientele and can be instrumental in building a firm’s client base. “If from a purely business point of view, if you’re looking to provide service to clients, again there’s a need for diversity and this is an example which probably impacts me directly,” says Choudhury. “Most law firms, including mine here, have started or are in the middle of . . . trying to get business from India. When you have such initiatives, it makes a lot of sense if you can have a few lawyers in your firm that are of Indian origin that you can use to further your initiatives.” Knowing and understanding your clients’ culture can provide the edge necessary to bring in and retain new business, especially in a globalized economy. “[I]f you have a culturally diverse team of lawyers, I think that it’s more likely that you’re going to have lawyers who will be able to understand and relate to any given cultural group. And as we all know, if you understand people and you relate to them, you are probably better equipped to be able to help them make good decisions and to solve their problems,” says Leung, an IP lawyer with Riches, McKenzie & Herbert LLP.
ACCESS TO JUSTICEBeyond good business, there is an access to justice issue. While it’s important to have representation from different groups in the upper echelons of law firms and even within government and the Crown, the judiciary has to reflect Canadian society as well. Currently, it does not. In January 1990, the report into the wrongful conviction of Donald Marshall Jr. in Nova Scotia — which concluded the justice system was rife with racism and mandated changes to the practice of law in order to address systemic discrimination against indigenous blacks and Mi’kmaqs — was released. Since then, notes Metallic, not one Mi’kmaq has been appointed to the bench and only one black lawyer has been made a judge — this year.
It’s not a case of there not being qualified candidates, asserts Walwyn. He says justice is not properly served if those who use the courts feel disenfranchised because they feel their voices and their community’s voices are not represented on the bench. “This is one of those rule of law issues that affects every citizen and if you have a bench that is not representative of the public it serves, you will have problems,” states Walwyn. “You’re doing a grave disservice to the general public and you’re compromising the rule of law. So the short answer is you should be able to see on your bench the community composition that the bench is serving and if you don’t have that, you have to ask why and you’ve got to address it.”
While months of research show there are some strides being made, particularly in the ranks of associates and law students, the reality on the ground at all levels still shows a disparity between the Canadian population and its reflection in the legal profession. A recent Catalyst study focusing on visible minorities in corporate Canada did not look only at the legal profession but it was strongly represented with 20 per cent of the respondent organizations being national law firms. The study showed visible minorities were more likely than their Caucasian colleagues to believe that career advancement processes were unfair and that it’s still a world of who you know, not what you know, that will move you up the ranks. Echoing what some of our interviewees for this article have said, the study that included 17,000 respondents, shows “visible minorities found it more difficult to access critical relations; access networks, mentors, champions, who really can help support them in terms of advancing their careers,” says Catalyst’s Gillis.
There are law firms stepping up to the plate. There are law societies taking on the issue of diversity. But overall the profession in Canada seems to be slowly, even reluctantly, moving forward. Nova Scotia has been pushed forward. Ontario and Quebec are the most diverse provinces and change there is slowly happening. But moving further west, diversity initiatives are not on the radar of most firms. Moving up in the profession, the numbers of visible minority, disabled, and LGBT lawyers, judges, benchers, and law professors are increasing but still not in the same numbers as in society as a whole. Governments and corporate Canada are making diversity a priority and law firms that follow suit will be more successful. As Frank Walwyn says: “Big firms are business driven. If, quite frankly, if they don’t wisen up, I think they’ll be left behind. The ones who don’t figure this out pretty soon are going to find that the world has passed them by.”
Demetra Dimokopoulos contributed extensive research for the special report on diversity in the legal profession.
