Addressing challenges faced by racialized licensees

Fernando Garcia
These are very interesting times to be a lawyer in Ontario. Although the protector of justice and equity in society, the legal profession is also one of the slowest professions to actually deal with the racism and sexism that, unfortunately, is still very prevalent at all levels of our profession.

Fortunately, we may be seeing the start of much-needed change. To its credit, the Law Society of Upper Canada took a big step in 2012 when the Challenges Faced by Racialized Licensees Working Group was created. The group’s mandate was to investigate the challenges faced by racialized licensees and consider strategies for enhanced inclusion at all career stages. A consultation paper titled “Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees” was presented to Convocation on Oct. 30, 2014, and it was followed by consultations throughout 2015. A final report was released on Sept. 22. This final report contains 13 recommendations. The most important recommendations, in my humble opinion, include:

1.    Undertake a review and amendment of the Rules of Professional Conduct to promote equality, diversity and inclusion;

2.    Work with stakeholders such as law firms, legal associations and law schools to develop policies and procedures to address challenges faced by racialized lawyers;

3.    A series of recommendations requiring law firms with at least 25 lawyers, the lawyers themselves and the law society to provide and measure data regarding demographics and diversity. Law firms with more than 10 lawyers would also be required to have and maintain a human rights/diversity policy and to undertake a diversity self-assessment;

4.    The law society would create and enforce compliance measures for legal workplaces not complying with the recommendations or those with identified systemic barriers to diversity and inclusion;

5.    Provide and require completion of continuing professional development courses addressing diversity and inclusiveness issues;

6.    The law society in conjunction with legal associations such as Legal Leaders for Diversity and the Law Firm Diversity and Inclusiveness Network will create networking and mentoring opportunities for racialized lawyers; and

7.    Create a special team of professional regulation members to address complaints of racial discrimination.

Legal professionals were encouraged to provide feedback on the final report. I was proud to make a submission in conjunction with my esteemed colleague Antonio Urdaneta. In our submission, we applauded the initiative and the recommendations made by the law society, but we felt there were some additional steps that could be taken to enhance the recommendations and remove the barriers of entry into our profession. Some of the key ones included:

o    Eliminate the LSAT: The report recommends that law firms should be prevented from discriminating, directly or indirectly, against racialized lawyers. Yet, U.S. studies have shown that the LSAT has an adverse impact on racialized applicants. One study found that “white” test-takers averaged a score of 152, versus 146 for “Latino” test takers and 142 for “black” test takers. Unfortunately, small differences in LSAT scores become an instrument of indirect discrimination and could adversely affect a racialized student from entering the profession. Law schools should cease requiring or considering LSAT scores immediately.

o    Make the LPP the only articling path or eliminate articling: There is a crisis with regard to articling in Ontario. This impact is felt the most by racialized and internationally trained lawyers, who, respectively, have less access to mentors, networks and, for ITLs, the articling recruitment process that takes place through on-campus interviews during the academic year.
To address this and other issues regarding the quality of articles, a program such as the Law Practice Program should become the main articling program for all licensees. Alternatively, we can move toward an integrated model, as seen at the law school in Lakehead University and throughout the U.S., which removes the requirement for articling. Then, more emphasis could be given in law schools to practical education and a final bar exam that measures relevant and necessary knowledge.

o    Scope and implementation of recommendations: Many of the recommendations in the final report are restricted to law firms of more than 10 or 25 lawyers. Yet, statistically, racialized lawyers, through choice or necessity, tend to be associated with or work in small to mid-size firms. Consequently, all law firms, regardless of their size, and in-house legal departments as well should be required to meet all of the requirements and obligations noted in the final report. Timing should also be expedited, as some of the recommendations take effect as late as 2019 or are to be determined. It is highly recommended that the law society make all reasonable efforts to implement all these recommendations as broadly as possible and as soon as possible with no undue delay.

Convocation meets on Dec. 2 to review the recommendations made in the final report, discuss the submission made by the public and, ultimately, vote on passing all or some of the recommendations. This is an important date as it represents an opportunity to address and remove the barriers faced by racialized lawyers in Ontario. On the other hand, if not accepted or if implementation is not properly managed, these valuable recommendations run the risk of being just another great initiative that dies a slow and painful death, ensuring that our system continues to fail the needs of our racialized lawyers. Let’s hope for success!

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