LSO diversity debate reignited after alleged conflict between equity advisor, bencher

The allegations come amid a larger discussion percolating within Convocation

LSO diversity debate reignited after alleged conflict between equity advisor, bencher

The head of the Law Society of Ontario’s Equity Advisory Group announced this week he may launch a formal complaint against a bencher.

Nima Hojjati said on Twitter on Jan. 20 that a bencher asked for his resignation from the EAG, “[n]ot because of my work, but because they could tell that ‘I hate democracy by looking at me’.”

“I won't resign because of the way I look,” he added in the tweet. “That's sort of the point of equity.”

Hojjati declined to comment further or name the bencher to Law Times, in favour of letting the formal complaint process run its course. Law Times has not viewed a copy of any complaint that may have been filed.

EAG, which includes members of the legal community from outside the law society’s board of benchers, provides third-party advice to benchers in the Equity and Indigenous Affairs Committee on issues that may come before Convocation. 

The advisory group includes representatives from Arab Canadian Lawyers’ Association, ARCH Disability Law Centre, Canadian Association of Black Lawyers, Canadian Association of Somali Lawyers, Canadian Hispanic Bar Association, Canadian Muslim Lawyers Association, Federation of Asian Canadian Lawyers, Law Students’ Society of Ontario, Ontario Paralegal Association, Roundtable of Diversity Associations, South Asian Bar Association and l'Association des juristes d'expression française de l'Ontario. Hojjati joined EAG in 2016 and became chair in 2018, pre-dating the term of some benchers elected last year. A lawyer at Swadron Associates, he was called to the bar in 2018. 

When asked for comment, a spokeswoman for the LSO referred Law Times to the official rules on bencher conduct.

Benchers are instructed to act with open-mindedness and good faith and keep in mind the reputation of the LSO. In particular, the code says benchers should be “respectful,” “inclusive” and keep the workplace “free from violence, discrimination and harassment.” 

“Interactions with management, fellow benchers and the public are to be courteous and respectful,” says the code. “Benchers must not engage in conduct that constitutes discrimination, harassment or sexual harassment towards bencher colleagues, management or any other person connected with a bencher’s duties.”

Convocation’s governance policies dictate that complaints should be made to the LSO Treasurer, Malcolm Mercer, in writing. The bencher may provide a written response to the treasurer about the complaint, and the treasurer will: “take no action; caution the subject bencher about the issue; require an apology from the subject bencher to those affected by conduct related to the issue; require an undertaking from the subject bencher with respect to conduct related to the issue; advise the subject bencher on any other steps to be taken to remedy or resolve the issue.” Whatever the treasurer decides will be reported to Convocation as part of the public record, the policies said.

The policy also allows the treasurer to opt for an independent third-party investigation of a complaint. Once the investigation is done and results are reported, the treasurer can take one of the aforementioned steps or “refer an issue to Convocation for a determination of whether the Code has not been complied with.” Convocation would decide the issue in private and provide written reasons to the bencher and share the results with the public.

Hojjati’s allegations — which have not yet been proven or evaluated by the formal complaint process — come amid a larger discussion percolating within Convocation. 

Bencher Murray Klippenstein disseminated a lengthy salvo this month questioning the LSO’s methodology and statistical analysis when surveying the prevalence of systemic racism in the legal profession.

Several social scientists with backgrounds in research declined to comment to Law Times on either Klippenstein’s criticisms or the LSO’s reports, citing lack of background information on the studies provided. 

Sam Goldstein, like Klippenstein, was elected to Convocation on a platform opposing the statement of principles requirement. The statement of principles — a self-authored reflection on promoting diversity and inclusion that was mandatory for Ontario lawyers — was deemed compelled speech and repealed by Klippenstein’s slate, StopSOP.

In a recent editorial on a legal website, Goldstein supported Klippenstein’s claims that the LSO “surely exaggerates the degree of discrimination in the profession.” 

“The society’s response to Klippenstein’s critique has been stoic silence, turning away from the stench of what is akin to a ripe 2-year old’s diaper in the middle of the floor of Convocation,” wrote Goldstein. “I don’t know what the society is going to do. Surely it is not good for the society’s image to be falsely telling Ontarians that the people who represent them before the law are all racists. That is an insult to all lawyers and paralegals in Ontario.” 

A representative from the StopSOP group did not respond to a request for comment for this article and did not say whether a member of the slate was involved in the alleged incident with Hojjati.

The LSO is not the only body grappling with these issues.

 A 2003 survey of Alberta lawyers found 91 per cent of racialized lawyers and 73 per cent of Caucasian lawyers thought there was discrimination in the legal profession against lawyers belonging to racial or ethnic minority group. The survey, analyzed by Joan Brockman in the Alberta Law Review, found that only 3.5 per cent of racialized lawyers and 14.9 per cent of Caucasian lawyers thought there was no discrimination.

More recently across the border, researchers in The Scholar found that law students almost uniformly showed implicit bias against people of colour. A 2016 survey of 2,827 lawyers prompted the 2018 New York Times’ headline: “Lawyers Say They Face Persistent Racial and Gender Bias at Work.”

The Law Society of British Columbia has also reacted to issues of discrimination in the profession by adding new requirements. All lawyers must do Indigenous cultural competency training.

B.C.-based lawyer Robert Finlay pushed back on the requirement in a blog post.

“Apart from the wonderfully Orwellian title of ‘intercultural competency,’ there’s little to recommend the idea of some bureaucrat at the Law Society spoon-feeding (formerly) independent-minded lawyers a version of history which conveniently accords with the political tenor of the times,” wrote Finlay.

Michael McDonald, co-chair of the LSBC’s Truth and Reconciliation Advisory Committee, also blogged on the topic, this time in support of the new requirement.

“Serving the public interest means a knowledge of the facts of history, even if that history does not show our society in a good light,” wrote McDonald.

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