Skip to content

The push for change

|Written By Susan Hughes

Increasing pressure from clients is forcing law firms to look at their diversity policies for both hiring and retention of minority and women lawyers.

While diversity policies in law firms are nothing new, an international shift in demand from clients for hard statistics about partners and the upper ranks may be putting Canadian firms’ collective teeth on edge. In the U.S., Wal-Mart requires at least one racial minority and woman among the top attorneys who handle its business. So do Visa International, Sara Lee, and Pitney Bowes. And in the U.K., Barclays Bank is the vanguard for transparency at London’s top firms.

In Canada, with pressure from clients just beginning and with increased competition in today’s global marketplace, are firms prepared for statistical requests about their diversity programs? If so, how do they translate into the retention of summer and articling students, and the competition for talent?

No one would dispute that law firms have moved away from the traditional old boys’ network. For example, Blake Cassels & Graydon LLP is regarded as one of the top employers, and its commitment to black lawyers is well known. But how are other large firms progressing on this front?

“Unfortunately, generically speaking, law firms in Canada are actually quite far behind on these issues, particularly when you look at American firms or even large business in Canada,” says Kara Sutherland, director of professional resources at Fraser Milner Casgrain LLP in Toronto. “Although we’re working hard on the issues, we’re not there yet in terms of having all the programs in place that we’d like and that we’re working towards achieving.”

On the issue of retention, she says, “It’s hard to say. We have gender numbers. We have more female associates than male associates. In terms of retaining people from articles to becoming associates, I think we’re quite strong on the gender side of it, but I can’t point to that other than anecdotally. People seem to be progressing and advancing from student to associate without any real hindrance.

“We do have a diversity committee, which was struck last fall in the Toronto office. There are two partners who co-chair the committee. Essentially, our strategy is to have the committee be top-down from management, and as well from the grass roots and up. The committee actually has a lot of members, about 30 lawyers from the firm, and they range from first-year associates all the way up to senior partners.”

It’s well documented that diversity policies are viewed more positively within an organization if they have the support of upper tiers of management, and are woven into the fabric of everything the firm says and does in those areas.

For Amer Mushtaq, who just finished his articles last year and is now an associate at FMC, the firm’s diversity policy was very important. He worked at the firm after second-year law school, later articled there, and has now returned for a third time. He says, “I think the broad sense was that they’re easier to talk to, more understanding, very considerate.”

Since he’s a mature student, Mustaq says he didn’t feel the pressure to make it work at FMC, and really wanted the best fit for a place where he’ll be spending 16 to 17 hours a day. “Being an articling student, you sometimes get involved in the hiring process, you see how they interview people, how they encourage different kinds of people to come in. I found the approach was very balanced. Obviously merit is one of the essential components they look at. I noticed there was an emphasis on having a diverse range of students and lawyers working here, and that diversity was not just limited to ethnicity and gender.”

Lorna Cuthbert, chairwoman of the diversity committee and a partner practising employment law at Stikeman Elliott LLP in Toronto, says, “Our formal committee has been in place since the fall of 2004. We had informal initiatives from associates interested in these issues earlier. Our formal committee includes partners, associates, and our business services.

“We have a mandate that relates to our goal for students and associates, which is to attract the best students that we can. We’ve reviewed our internal practices and policies to make sure that we’re not inadvertently excluding a qualified candidate as a student.

“We don’t track statistics. We have a very concentrated HR group in our student and associate program and the head of our student program also sits on our diversity committee. What we do, as far as mentorship goes, is give our students three mentors. We came out of the gate a little earlier, and recognized what we needed to do.”

Feedback from students points to Stikemans’ diversity initiatives being highly regarded. “Many of the students’ cover letters comment on our diversity initiatives,” says Cuthbert. “I think, anecdotally, we’re recruiting a broad range of students and I don’t think we do anything to exclude. Our retention of students from diverse communities is equal to those from non-diverse.

Associate retention is an enormous issue these days and expands far across issues other than whether someone is from a diverse background.” Stikemans also has a sub-committee for National Accreditation Bureau students, one of the problem areas for students identified in the Law Society of Upper Canada’s Equity and Aboriginal Issues Committee.

At McCarthy Tétrault LLP, where the focus is on gender diversity and the retention of female associates, Kirby Chown, Ontario region managing partner, says, “We do have a diversity policy and a director of students. It’s a bit tricky because we have a match program for female students, so we don’t have control ultimately over who picks us, who matches up. As a general principle, we try to interview all candidates, bearing in mind that we’re looking at people in the top third of their class. So if you’re outside that group, what ever colour, shape, form, or background you have, we wouldn’t interview.

“We’re all interested in creating a diverse lawyer population. It’s different for us than Toronto-Dominion Bank with its population of workers. They control the hiring. With us, there are 20 law schools in Canada. We’re already narrowed down to people with a university education, people with a law-school education.”

Chantal Morton, director of career services at York University’s Osgoode Hall Law School doesn’t agree that it’s harder for law firms than big corporations. “I think it is important to consider how you define the ‘best’ students,” she says. “I think you need to understand diversity brings something to an organization and that’s a fact you have to consider along with any other criteria.

“This is an important topic for a lot of offices and certainly the law firms are trying to do something. The schools are trying to work with the firms and their students to do something about equity and diversity within the profession. A lot of offices are doing a very good job of recruiting, the difficulty is in retention. Issues around mentorship, around giving good files to new associates. Making sure they are supported, being conscious of ways you might exclude people. You need to expand the discussion, too, to include issues around disabilities and sexual orientation.”

At present, no Canadian firm tracks retention figures. With only anecdotal information available, some are wary about commenting. There’s a real sense that this is an issue still in its infancy. “It’s very important to have metrics to see where you’re at, and to set goals,” according to Sutherland. “Unless you have the numbers, you’re just making assumptions based on your perception of what’s going on. You need objective facts to support your view.”

Next year, too, Morton hopes that the Canadian section of the National Association for Legal Career Professionals will publish a Canadian directory for legal employers with a section on equity and diversity. “All firms, not just large firms,” she says, so students will be able to “access information and will know whether or not there are systems of support in place” at the firms to whom they’re applying.

In June, Catalyst research issued a report, “Career Advancement in Corporate Canada: A Focus on Visible Minorities.” The findings on diversity in law firms have not been released to the public, but there were telling figures on gender differences in professional services firms (law, accounting, consulting) in the study. Differences in how fair career advancement processes were perceived in the “firm environment” elicited a response of 64 per cent agreement of white/Caucasian men to 48 per cent of white/Caucasian women who agreed that their firm’s talent identification processes were fair. Similarly, 68 per cent of the women in this group reported that their firms did a good job of promoting and admitting the most competent people into partnership. The corresponding figure for men was 78 per cent. Lastly, 83 per cent of Caucasian men agreed that there was equity in career advancement opportunities in their firms, to 70 per cent for women. Interestingly, this gender difference was not found among visible-minority respondents, who overall were “significantly less satisfied with their careers than white/Caucasians.”

The business case for diversity takes aim at more than just reflecting the makeup of Canadian society. It speaks to employee retention and motivation, as well as increased profitability. While law firms have long been aware of the business and ethical case for such policies, client demand and competition for talent will ultimately drive the tracking of such policies. “The clients are starting to review external counsel with respect to diversity issues,” says Sutherland. “More and more are starting to ask who’s working on a file.”

Unfortunately, the issues of inclusion or "the fit,” as well as sexual orientation and social class, are much less visible elements of diversity, and not as amenable to measurement. For these, the support of mentorship programs, high-profile assignments, networking opportunities, and sensitivity to other cultures will be crucial.

Many feel that a multi-organization approach will work best to achieve inclusive workplaces. Morton says, “The Canadian Bar Association has been meeting for the last couple of years around best practices for diversity, and has developed a diversity kit for firms. The discussion is always going on, but quite a few firms are really taking this seriously, particularly larger firms. It’s everywhere, but we need to do more.”

These views are echoed by Lianne Krakauer, assistant dean of career services at U of T Law School. “We’re bringing together academics, regulators, law schools for ideas on how we can bring the profession forward. We’re trying to work across organizational boundaries. It’s not just the firms’ responsibility.

“The bigger issue is retention. For women and men.” The key is, “creating an environment that’s inclusive, where people with different priorities are able to find a place, where work is allocated in a fair manner, good quality work. Those are the kinds of things the firms can and do address.

“A disturbing trend, if it becomes one, is often women students go to their first job, and they’re not even starting with an optimistic attitude, not even expecting it to work. A lot is generational too, not necessarily racial. This is a generation of high expectations.

“Client interest is just starting to happen. I sense that this will provide an impetus for real change.”