Criminal Law

LSO statement of principles likely to fall: Rosen

By Paul Russell, AdvocateDaily.com Contributor

Ontario lawyers are already obliged to uphold the law in an unbiased and impartial manner, whether with their colleagues or the public, so it is understandable why many are upset that they have to endorse a statement of principles addressing equality, says Toronto criminal lawyer John Rosen.

"The Rules of Professional Conduct set out by the Law Society of Ontario (LSO) require lawyers to act in professional and ethical manner, which means we must be colour blind and blind to everyone’s gender, race, religion, and ethnicity, so is it any wonder that many of my peers are asking, 'Why do we need this statement?'" says Rosen, founder of Rosen & Company Barristers.

He explains that every lawyer in Ontario has to fill out an annual report, detailing basic information about their practice. The report requires lawyers to declare their confirmation of a statement of principles "that acknowledges my obligation to promote equity, diversity, and inclusion generally, and in my behaviour towards colleagues, employees, clients and the public," he says, adding that lawyers who do not agree to abide by the statement could face discipline.

He points out, however, that when it comes to self-declarations as to race, religion, ethnicity, and gender, the obligation to answer is voluntary.

“What makes the obligation to confirm the statement of principles different,” he asks?

"Furthermore, forcing us to endorse this statement is a form of forced speech, not free speech," Rosen tells AdvocateDaily.com.

He says a historical parallel can be made to British lawyer Sir Thomas More, who in 1530, refused to take the Oath of Supremacy, which required a pledge of allegiance to the king (Henry VIII) and his heirs, including those produced through his marriage to his second wife, Anne Boleyn. More refused to take that oath, and was eventually convicted of treason and executed.

"More was forced to acknowledge a marriage that he did not accept was legitimate and contrary to his principles, which was also a form of forced speech," says Rosen.

Opposition to the LSO's declaration came to a head during this year’s bencher elections, with 22 of 40 people elected vowing to scrap the statement of principles, he says.

At their June meeting, Rosen says benchers will decide whether to replace the current treasurer.

He explains that the person in that position "really is the CEO of the law society’s board, but for historical reasons, they are called the treasurer."

After that election, the statement of principles will then be put to a vote, "and I suspect it will be gone," says Rosen.

In a recent Globe and Mail column, one bencher argues for keeping the statement.

"Racialized lawyers are underrepresented in the legal profession and as law firm partners, and are overrepresented as solo practitioners," the bencher writes.

"Forty per cent of racialized licensees identified their racial/ethnic identity as a barrier into practice, compared with three per cent of non-racialized licensees," the bencher adds.

Rosen says that if racism and bigotry are issues in the legal community, adherence to or adoption of a statement of principles will not solve the problem.

“As the saying goes, judge me not by what I say but by what I do,” he says. "If there is racism and bigotry in the profession, I don’t have the final answer for how to suppress that. I just don't think this declaration is going to help improve the situation."

"This declaration doesn't break down any barriers," Rosen says. "The big firms are going to hire on merit, and nothing else."

He describes Ontario’s legal profession as a meritocracy. "The smarter you are and the harder you work, the more opportunities you're going to have.”

Rosen notes that Jewish lawyers had to deal with rampant anti-Semitism over the years, which appears to be on the rise again. He says a statement of principles would not have helped then, and will not help now.

"I would rather see a program of real mentorship and other educational and experiential efforts within the profession that would foster inclusion rather than a mere declaration that may prove hollow at best.”

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