A new decision by the Law Society of Upper Canada that considered a black lawyer’s disadvantage in his articling experiences could hold the key to a frank discussion on systemic discrimination in the profession, according to lawyers familiar with the ruling.
Although a law society appeal panel found Toronto real estate lawyer Selwyn McSween guilty of professional misconduct for “completely abdicating his professional responsibility” to an allegedly unscrupulous law clerk, dissenting appeal panellists Clayton Ruby and Constance Backhouse acknowledged the 66-year-old man from Trinidad faced “systemic disadvantages” that eventually led him to hire the clerk and ultimately to “an increased risk of disbarment.”
“We cannot close our eyes to the disproportionate number of black lawyers whom we find before us faced with very grave professional misconduct allegations,” Ruby wrote in the dissenting opinion for Law Society of Upper Canada v. Selwyn Milan McSween.
“The legal profession has made no concerted effort to rid itself of the racism inherent in the practice. The effects of racial inequality are real, not imagined, and we do the public no favour by refusing to acknowledge them.”
In 2010, McSween, a budding real estate lawyer and former investigator with the Ontario Human Rights Commission, had his licence to practise law revoked after the law society found he knowingly assisted in 10 fraudulent mortgage transactions allegedly initiated by law clerk Maureen French.
McSween, according to the ruling this month, had hired French after a difficult start in the profession that included more than 50 failed attempts to secure articling positions.
But shortly after hiring French in 2004, the clerk allegedly began a series of fraudulent mortgage transactions over the course of several months. McSween argued he knew nothing about the transactions.
“I’m not looking for fraud,” the Jan. 13 appeal ruling quoted McSween as saying in November 2009. “I’m not looking for tricks or anything. I’m not looking to make money.
I just wanted to get started in the profession, so I didn’t even know anybody who knew about tricks of real estate or professionals in real estate, so these people told me, they said look, I’m going to bring people to do the transactions.
Ms. French told me I will teach you everything I know. That’s how I really got involved with them.”
McSween added: “And as much as I regret my own responsibility in this, I regret some of the circumstances didn’t really favour me in terms of getting help from others.
I went to other lawyers, senior lawyers. I asked them for help. I wasn’t able to get help.”
McSween alleged French, whom he had employed to teach him about real estate law between 2004 and 2005 when the fraudulent activity took place, had duped him.
In his view, his race prevented him from securing meaningful articling positions that would have given him the experience necessary to run a successful real estate practice, ultimately leading him to employ French in order to learn about the profession.
The appeal panel ruled that because McSween had failed to guard himself against French, he must surrender his licence. After the original hearing panel disbarred him, McSween sought permission to resign.
The appeal panel issued the more lenient penalty but
nevertheless emphasized the misconduct.
“Sometimes, there is a mistaken impression that if the society fails to prove knowledge, willful blindness or recklessness, there can be no professional misconduct,” the appeal panel wrote in the majority decision.
“This is not so. . . . Hence, the fact that a licensee ‘ought to have known’ that he/she was participating or assisting in a mortgage fraud may figure prominently in a finding of professional misconduct, but not based on knowledge, willful blindness or recklessness.”
But Osborne Barnwell, who represented McSween in the case, says that interpretation of professional misconduct raises important concerns when it comes to lawyers like his client.
“McSween was a familiar tale to us,” says Barnwell. “He was a victim of circumstance, his race prevented him from getting the experience he needed, and although he should have been more careful, he simply screwed up by placing his trust in the wrong people.
He didn’t have any experience because of what he faced, so he couldn’t have known. . . .
He was duped by Ms. French.”
According to Barnwell, McSween had articled for a local law firm several years before meeting French.
His articling work included carrying bags and picking up laundry but didn’t include any real estate experience, notes Barnwell, who argues that lack of experience ultimately led McSween to become a sole practitioner like many other black lawyers and, as a result, struggle in the profession.
“The law society has never acknowledged the racism we face in trying to find articling positions or other employment,” says Barnwell. “That’s why so many minority lawyers are opening their own practices now.
Racism is something no one wants to talk about because they’re afraid of the pushback they’ll get. Even as litigators, it’s customary for us to not raise the race issue because we’re afraid we may suffer that pushback.
Even in the post-Obama era, it’s still a topic we don’t discuss and there’s always this clash of knowing what we should do and actually doing it. That’s why this decision is so powerful. It airs those issues and looks at the elephant in the room.”
But fellow lawyer Selwyn Pieters says that while the appeal decision tackles those issues head on, it may not have a widespread impact until it reaches the courts. “It’s a step in the right direction,” says Pieters.
“But it’s an appeal decision by the law society, so I don’t think it will have much value on a widespread basis. What would be more interesting to see is how the courts would handle these issues. I think that would add a lot of value.”
According to Pieters, there have been several cases involving similar issues to McSween’s. “There are quite a few cases where minority lawyers have been duped by someone in their office because they didn’t have the experience to prepare them because of their race. McSween certainly isn’t the first case.”
A look at law society disciplinary decisions from last year shows at least four allegations of professional misconduct involving similar issues against black lawyers.
At the same time, a Canadian Bar Association review of racism in the legal profession in 1999 indicated that law graduates from minority groups had fewer and less meaningful articling opportunities compared to others in the profession.
According to Barnwell, those issues will remain a concern until the profession does something. “What do you do as a community?” he asks. “You don’t want to be a pariah because of your black skin but you don’t want to sacrifice your profession.
There are so many stories like this out there and no one really has an idea of what we go through. It’s an insurmountable hill and we’re constantly climbing it. . . . It feels like we’ll never get to the top.”
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