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Ruling tackles racism in legal profession

|Written By Kendyl Sebesta

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.

‘The law society has never acknowledged the racism we face in trying to find articling positions or other employment,’ says Osborne Barnwell, who represented Selwyn McSween. Photo: Laura Pedersen

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.”

For related content, see "Does LSUC target small-firm lawyers?"

  • faultsinnobaradcours
    pure raceism would need imperical evidence. stories and unsubstantiated belief makes smoke but is there real demonstrable fire.-- the cancelation of a proper bar admission course guarantees that young lawyers will all be at the same risk as this man. Had he been required to have a full hands on real estate course with a proper exam it would not be necesary to blame the profession. He was taken in by a cheat do articles teach this or expose a student to that if he had been at the very best real estate firm he would have been unlikly to be exposed to such dishonesty.There may be race problems in the profession but one should be careful what gets blamed on them
  • cheryl
    i agree with Regulus deLeo. We have to forge ahead and strive for equality not bleeding liberalist who tell us 'there,there'. when we are fortunate enough to acquire practical knowledge we should impart this knowledge to each other instead of thinking our selves 'special'. In this society the first thing that's seen is the colour of your skin and with that there is never the Presumption that we know our stuff.
  • Regulus de Leo
    This is the soft bigotry of low expectations. Making sure black lawyers get meaningful articling positions is the answer, not lowering expectations of conduct. The disciplinary committee must be colour blind. Minorities deserve equality not paternalistic liberalsm
  • John Legge
    Post-call mentoring and support are absolutely essential for all developing lawyers. What - 2% or 3% of graduates fall into a law factory job. Another 50% into low pay and brutal hard work in a small firm to learn their trade. Leaving a huge number to flounder without real support. Leave aside the shameful cost of CLE. Save perhaps for some of the better County Law Associations, generally, can we as a Profession really pretend we are doing our part? Benchers Backhouse and Ruby got it right.
  • Hanging In Somehow
    Mentoring is a dirty word in the practice of law.

    Some of the gems that I have heard over the years in my interviews and narrated by friends:

    1. I think Juniors are a waste of time.
    2. You know....If someone mentions Mentorship, it signals to me that they are lazy.
    3. Lawyers are generally very busy, they do not have time to mentor a junior.
    4. Do not mention Mentoring in your interview.

    I wonder if the LSUC is going to do anything about the law firm that asked its articling student to run errands?
  • Tammy Evans
    This is an important issue that needs to be brought out in the open and tackled directly and aggressively by the Law Society and the profession as a whole to ensure that all qualified candidates obtain appropriate articling positions, not just those of the "right" colour/race. Carrying bags and picking up laundry is not appopriate or responsible training for the next generation of lawyers that will serve our society's legal needs. We must do better, this is 2012, not 1940. Real estate fraud is on the rise, with fraudsters constantly finding creative new ways to achieve their goals. We must address this issue and I applaud the writer for the direct approach of the article. While not ever an excuse, this lack of proper training is an underlying contributing factor to the lawyer's troubles.
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