A bridge and a ladder: two metaphors, one diversity deficit

Why is diversity proving so elusive for the Canadian legal profession? For a long time, we were actually ahead of the curve. The Canadian Bill of Rights, the Charter of Rights and Freedoms, and the Canadian Multiculturalism Act were the visions of three very different prime ministers, but each a lawyer: a criminal trial counsel, a law professor, and a labour lawyer. Lawyers and judges have applied these laws in the courts, to ensure they do not become — as in so many other countries — empty words. As author of the model Principles of Conduct for the Canadian Bar Association, I feel pride when I walk past the Ontario version in the OBA’s lobby and read these words:
“The OBA recognizes the historical role of codification of rights, freedoms and responsibilities in breaking down unseen barriers to participation. It seeks the participation of new members and volunteers from every sector of the legal profession.”

But when it comes to putting our house in order, our record is abysmal. In 2011, DiverseCity Toronto released its discouraging report on the demographics of the Toronto-area legal profession. Compared to the 49.5 per cent of the general population counted as visible minorities, in the legal profession it was 14.4 per cent, and only 6.8 per cent among senior lawyers and judges. In 2012, the Ryerson University Diversity Institute report focused on judges and found a similar lack of diversity.

What are we missing? Many Toronto lawyers do come from visible minority backgrounds. Yet they struggle to fit into the profession, and few reach senior positions. What are they missing?

Structural causes of the diversity deficit

Picture an on-going tug of war between old blood and new. The teams are frozen like statues across an incomplete bridge. Are the incumbents pulling the newcomers over to their side or into the gap? And why are the newcomers pulling back?

Newcomers often fail to recognize culture as the basis of established norms. Most successful societies absorb newcomers, but few welcome rapid changes. This gap in mindset suppresses the necessary bridge -building between integration and innovation. Only the brave or the trusting can cross a bridge that does not meet in the middle. If this picture is not clear close up, take a step back and look again. You will see three areas of entrenched negativity, resulting in institutional failure:

Discouraging stats: the documented dearth of diversity in the law and the judiciary, compared to other sectors of Canadian society.

Fear that diversity will compromise merit: the tensions of the melting pot versus mosaic arise from more primal instincts and become amplified in self-regulating communities. “Thinking like us” reflects a systemic value of a meritocracy. When does “thinking like us” slide from merit to exclusion?

Profiling: ethnic and racialized lawyers’ groups complain that law societies unfairly target their members for discipline and compliance. There is a chicken-and-egg logic to this issue. The lack of mutual understanding perpetuates itself the more one side feels victimized, and the more the other side denies a problem exists.

If you strip the politically charged language from the structure of the argument, you’ll see the struggle on the bridge quite differently:

• The paucity of successful new participants from an important demographic group stifles innovation.

• Lack of familiarity with the cultures of the newcomers engender fear among the incumbents that change will water down quality.

• Newcomers perceive the institution as protecting incumbents from competition.

When the established practices and self-regulation are described in neutral language, it becomes evident why the bridge is left unfinished. Newcomers can try to traverse it, but many stumble and fall through the gap. The newcomers’ weakness is their lack of inside knowledge. Meanwhile, the established group perceives the newcomers’ concerns as a threat to institutional norms and accomplishments. So the two groups remain apart and frustrated.

The asymmetrical contestable market: making it work for new entrants

Although many talk about the legal profession as a monopoly, this is incorrect. A more accurate label is a “contestable market,” one in which not everyone can become a lawyer, but many can. The participants are relatively free to come and go. Gone are the days when membership in the bar was a meal ticket. Law is an “asymmetrical” contestable market because incumbents’ knowledge of the business and economies of scale give them a competitive edge over new entrants. This cultural deficit explains in economic terms why success in overcoming prejudice has not resulted in more diversity.

The self-regulating nature of law’s contestable market can equate the established culture as a standard of quality control. For the regulator, this is a path of least resistance. Law societies cannot order law firms to hire certain types of associates, or to axe succession practices based on “fit” or “firm culture.” Newcomers struggling for “a piece of the action” can see what the insiders cannot see: the criteria for determining merit are created in the image of their authors and thus promote sameness.

Legal education and mentorship do not amount to cloning, but the beehive design of factory law firms does make it hard for lawyers from diverse backgrounds to stand out without attracting the wrong type of attention.

The insiders and legal institutions also see what the newcomers do not. Law, the profession founded on our species’ impulse for peace and order, is conservative. To navigate our legal profession, you need an understanding of early Canada and the men whose portraits adorn the walls of our courthouses and law societies, for they were the ones who first set the rules. It should not come as a surprise that their voices still resonate. We can and do misinterpret institutional covetousness of achievements as resistance to innovation.

In tackling the overt “isms” such as sexism, racism, and ageism, law in Canada has come a long way in a short time. For fear of seeming to promote assimilation, we have shied from encouraging newcomers to learn our ways. This has been a disservice, because the informational gaps give incumbents cause to complain that new participants lack historical perspective, and give the newcomers cause to interpret the gaps as intended barriers.

In this post-ismatic legal workplace, we can say to your face that your gender or skin colour means nothing — but we will still measure merit according to your familiarity with the clubhouse rules. Canadian lawyers need more historical consciousness, and need to teach new colleagues how to value our history and civic institutions.

Missing rungs on the ladder

Newcomers often dismiss the value of history, and start their legal careers from the wheel-as-prototype stage. Many new Canadians prize scholastic performance above network-building and culture. It is not surprising that lawyers from such communities perform well in school. But, as observed by Don Liu, senior vice president, general counsel, and corporate secretary at Xerox Corp., in a recent speech to the Federation of Asian-Canadian Lawyers, immigrant parenting methods pushing technocratic values can impede children’s career advancement.

Once in the law office, these former A+ students often underachieve compared to their better-connected, more gregarious, yet academically middling counterparts from established communities. Others encounter pressures to maintain their hyphenated-Canadian heritages. Still others come from groups whose historical grievances make it hard to build on the heritage of their ancestors’ oppressors. In each of these scenarios, the ladder between school and career can be missing rungs: no network of contacts and clients, lack of historical perspective, flawed written or oral skills in the applicable official language, and anti-establishment sentiments. Inserting these rungs necessarily involves a great deal of self-help.

Start here and don’t give up

Buried in the stats of the Ryerson report is this story: “Within the OBA, 20 per cent of leaders were visible minorities compared to 5 per cent of LSUC benchers.” In fact, the OBA leadership outperforms the overall Toronto-area legal demographics (14.4 per cent). The modern bar association provides the advocacy, education, and networking required to promote integration of newcomers.

Law will catch up to the diversity of Canadian society only when new participants discover that success in law depends on knowledge of local rules and customs. It is not enough to exhort newcomers to network, self-promote, and mentor others. The newcomers must reach into establishment circles, or else their labours will create ghettoes. Institutions can make better efforts to accommodate, but all new lawyers must start with at least these three points:

• Mastery of an official language of Canada. Whatever your views on this perennial issue of Canadian immigration policy, lawyers are wordsmiths. Think your English (ou votre français) is good enough? In law, your words set the boundaries between parties’ rights, or the difference between right and wrong. It must be more than fluency. Even among native speakers, your language skills can never be too good, and your pencil never too sharp.

• Comprehensive knowledge of the history and politics of Canada and its regions. All law has history, and much of history is law.

• The courage to ask “dumb” questions. Don’t take “We’ve always done it that way” for an answer. The greatest value of diversity is the ability of a newcomer to test whether a practice makes sense or is an old habit ready for retirement. Old blood looks to new blood for innovation. You have to deliver on your side of the bargain.

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