Chasm in opinions remains after statement of principles repeal

Benchers vow to work toward unity

Chasm in opinions remains after statement of principles repeal
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Despite ending September’s convocation meeting in compromise, the Law Society of Ontario’s decision to replace the statement of principles has evoked a wide range of opposing views.

The statement of principles — which required lawyers to write a pledge promoting diversity and inclusion — has faced years of scrutiny. Supporters argued it was a small but crucial symbol of inclusion in the profession, while opponents argued that a regulator in a democracy should not threaten disciplinary action based on compelled speech.

The opponents, Stop SOP, won a battle on Sept. 11, when benchers voted to repeal the requirement. But the law society’s board also approved a less intensive equality and diversity acknowledgement to be added to lawyers’ annual reports, despite protests from some Stop SOP benchers.

Bencher Sidney Troister, who introduced the conciliatory motion that was ultimately adopted, says it is unrealistic that a single initiative will be acceptable to the almost 60,000 lawyers in the province, who are diverse in many ways.

“I am realistic enough to know that there is no single solution to the complex problem of addressing discrimination in our professions and in society at large,” he says.  “What we can do and what I hope the new proposal does is send a reminder to all licensees of their existing obligations, perhaps influence behavior, even in the smallest of ways and similarly signal to all licensees that no one should be considered excluded or diminished simply because a very divisive and in my view flawed requirement has been repealed.  Hopefully, we will move on and recognize that the solution rests with each of us and our individual behaviours.”

The compromise, however, has not quelled concerns from some members of the profession.

“The protracted debate about the SOP has been hurtful and divisive for many,” said OBA President Colin Stevenson. “To keep the confidence of the profession and the public we serve, this Convocation must get on with finding and implementing solutions to inequality in the profession. We are here to help them and, in the meantime, Ontario lawyers will find an inclusive home at the OBA.”

Nima Hojjati, chair of the Equity Advisory Group that advises the law society on equity issues independent of bencher committees, said that despite research provided by the EAG, “myths and misinformation about the SOP and systemic racism continued to cloud the debate” at the law society.

“Both the outcome and the process for repealing the SOP were disappointing. This decision should have been preceded by robust consultation,” said Hojjati. “[The Equity Advisory Group] will move forward and we will continue advising the LSO on issues affecting equity communities, both within the legal professions and relevant to those seeking access to them. What the LSO chooses to do with that advice is beyond our control.”

The characterization of the debate as “divisive” and “disappointing” stood in sharp contrast to a celebratory statement from Stop SOP benchers, which said it planned to further cull the LSO’s “ever-expanding mission, sprawling bureaucracy and ballooning budgetary expenditures.”

“The SOP requirement, adopted in December 2016, compelled speech and created an ideological litmus test for the practice of law,” the slate of 22 lawyers said in a statement. “The repeal of the SOP is one step towards returning the regulator to its core mandate of governing competence of the profession in the public interest.”

But Bencher Alexander Wilkes, part of the Stop SOP slate, said he does not believe the compromise motion, “checking a box,” will lead to “a unified path forward on diversity and inclusion.” He says his goal of inclusivity includes a society where “immutable characteristics like skin tone, sex, or sexual orientation are irrelevant to how one is judged or treated by others.”

“It is clear that the vast majority of individuals in our profession (and indeed in society at large) hope for a fully inclusive society,” he said. “Though the profession appears at first glance more divided than ever in light of the election and the results of yesterday’s convocation, I am firmly of the belief that having an open and frank debate about how best to reach this idyllic, inclusive society is crucial.”

The response from the legal community echoed the debate of benchers on Sept. 11, a day dominated by split votes. The successful motion, for an annual acknowledgment of human rights and the rules of professional conduct, was passed with 27 supporters, 18 opponents, with five abstentions. The day’s other winning motion, the full repeal of the statement of principles requirement, was passed with 28 supporters, 20 opponents, with two abstentions.

There were other close calls: A motion to table (failed, 23 for, 26 against, one abstention); and a motion calling for a voluntary statement of principles (failed 23 for, 27 against).

Bencher Atrisha Lewis, a supporter of the statement of principles, said the discourse surrounding the statement of principles has fractured the profession, but that she’s hopeful the law society will find a path forward on the topic of diversity and inclusion.

“We need now, more than ever, a very clear commitment by the Law Society on the other equity initiatives,” she told Law Times. “Otherwise, it will reinforce for the profession that it was never about free speech, and that is truly hurtful to many racialized licensees.”

A poll of Law Times readers this week — which was not scientific and did not track who voted — indicated that a majority of Ontario’s lawyers had not seen any interest about the statement of principles from members of the public. However, some readers told Law Times that there was more to the story.

“[M]y clients are concerned that if I cannot protect my rights — or don’t recognize my rights are being infringed — that I cannot recognize and protect ‘their’ rights,” one commenter noted.

Bencher Isfahan Merali says she wants to believe all benchers will keep the public interest “foremost in mind” in the work ahead.

“I want to remain hopeful that it is still possible to achieve a unified path towards diversity, equity and inclusion,” Merali says.

Bencher Joseph Groia says the “struggle for equality in the legal profession has been wounded by the events of the last few months.”

“The compromise that we finally passed, in the face of meanspirited opposition, was mostly symbolic,” he says. “Yesterday, Convocation corrected the narrow mistakes we made in November 2016 and in December 2017, when we required there to be a mandatory SOP. Yesterday, however, does not mean that our resolve to battle for civil and equality rights has weakened. All of us must continue to work zealously every day to overcome the crippling legacies of injustice, racism and bigotry. And overcome them we shall."  

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