Lack of law profession transparency preventing necessary culture change

Tuesday, February 27, 2018 

If you’re Law Society of Ontario (LSO) treasurer Paul Schabas, you’ve got to be frustrated by the results of the recent LSO survey that prompted 20 per cent of responding articling students to reveal that they had received “unwelcome attention.”

The results evidence the culture of a profession lagging precariously behind societal norms — if not behind Hollywood — in creating a harassment-free environment for all.

But it’s not for lack of trying on the LSO’s part. Schabas and his recent predecessors can point to a host of initiatives to educate the profession on workplace conduct and diversity. Most prominently but certainly not exclusively, they include the Equity Advisory Group, the discrimination and harassment counsel, the Justicia Project and the Challenges Faced by Racialized Licensees initiative.

Nor is the LSO sitting on its laurels. “The whole issue is very troubling,” Schabas said. “The survey is telling us we’ve got to do more, revisit some of our basic processes and redouble our efforts.”

As Schabas pointed out, the Rules of Professional Conduct already prohibit harassing behaviour. He promises that the LSO will step up its already proactive approach on educational, research and disciplinary levels. He’s encouraged by the “extraordinarily diverse” graduating class he welcomed at the last call to the bar. He sees open-mindedness growing in the profession and internal change in law firms.

“We’re trying our best to accelerate change and the receptiveness by the profession is apparent,” he said. “People aren’t pushing back on anything.”

Unfortunately, not “pushing back” isn’t nearly enough. That’s why the survey produced numbers that “sadden and disappoint” the treasurer. Clearly, there are internal barriers in the profession that are preventing the visceral culture change that’s necessary.

According to Devesh Kapur, a University of Pennsylvania economist who has studied the sad lot of India’s untouchables, real change happens in stages: the first is when people stop noticing differences, the second is when they stop caring and the third is when they actively want to do away with discrimination.

The first two steps are essentially passive. But they’re not likely to happen unless the powers that be actively want to do away with discrimination. In other words, there are the protagonists, those who are first to wish discrimination gone, and then there are the rest: the ones who, as a result of protagonists’ efforts, stop noticing the differences and stop caring about them. But eventually we need the followers, not just the leaders, to be equally active in eliminating discrimination and harassment.

In the context of the legal profession, the LSO has done an admirable job as protagonist. But the reason the results are so far disappointing, both on the harassment and the diversity side, is that the law firms — particularly the major firms — have not got far enough past the stop noticing and stop caring stages.

By that I mean, they simply haven’t put their money where their mouth is. And I’m not talking about spending. I’m talking about transparency.

Earlier this month, for example, seven top 50 U.K. law firms published their gender pay gap data. Linklaters has the largest gap, with female staff paid on average 23 per cent less than their male colleagues and 39 per cent when the mean governs; to boot, women’s bonus payments are 58 per cent less. The numbers don’t include partners’ earnings.

Linklaters and the other reporting firms explain the differences in part by pointing to the fact that proportionally more women work in less well paid secretarial or support roles, or work part time. (Needless to say, they don’t explain the profession’s culture assures that demographic.)

But the validity of the explanations isn’t the point. The point is that publication of the statistics provides a reference point for meaningful discussion. We continue to get our statistics from what those discriminated against tell us, often as respondents to surveys. My guess is that things won’t change, or won’t change nearly as quickly, until we get our information from the ranks of the transgressors.

Unfortunately, statistical transparency continues to elude Canadian law firms. As I pointed out in a column last year, our homegrown firms, the ones whom the global behemoths have not absorbed and who have most of their lawyers in Canada — including heavyweights like Blake, Cassels & Graydon; Borden Ladner Gervais; Goodmans; Osler, Hoskin & Harcourt; Stikeman Elliott; and Torys — are downright squeamish about anything to do with their financial performance, be it revenue, profits, profits per equity partner (PEP) or associate salaries.

I also dealt with the hackneyed response that law firms are private entities, an argument that elevates form over substance. It’s an argument that ignores the reality that lawyers are regulated (and from all appearances, law firms soon will be), that they’re regulated by an authority that has a public interest mandate, and that they and the courts to whom they have a duty are the faces of our system of justice.

Lawyers are also the constitutionally hallowed guardians of clients’ secrets. Which doesn’t mean they should be allowed to be secretive about everything.

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