Skip to content

A personal reflection on the statement of principles resistance

I am a female visible minority licensee. I was unimpressed with the Law Society of Upper Canada’s requirement for the Statement of Principles. Not because I thought it was an intrusion upon free speech but because I thought the requirement was not enough. It is now 2018 and we have not moved the dial as much as I thought we would have by now on the issue of racial equality.

I am a commercial litigator on Bay Street. There are different and unique issues regarding racial diversity in other practice milieus. I can only speak to my own experiences. From my perspective, the assumption (as articulated by members of the profession) that visible minority licensees are not relatively disadvantaged is simply incorrect and even though the statement of principles decision has been made, there continues to be resistance within the legal community including pieces in Law Times, The Toronto Star, The National Post, CBC and page 30 of The Middlesex Law Association’s December newsletter.

The practice of law is not the same for everyone. When I walk into a room, I can tell that I make some people nervous. They are nervous because I do not look like the kind of lawyer they imagined they would work with when they made their way to my office. Some doubt that I will provide excellent representation, notwithstanding that I graduated among the top of my class at the University of Toronto and work at one of Canada’s leading law firms, where I was trained by some of the best litigators in the country. Many simply do not extend the same benefit of the doubt to me as they extend to others. 

The practice of law is hard and I accept that everyone has difficult days. But when I first meet someone in a professional setting, I am usually asked seemingly innocuous questions including my age, how long I have worked at my firm, how long I have practiced law or where I am from. I presume I am asked these questions because people are trying to assess my legitimacy as a lawyer, whereas the legitimacy of others is a given. 

I experience daily frustrations that are not experienced by many within our profession: Have you ever had to explain that you are the lawyer and not the client, articling student or legal assistant? Have you ever had racial slurs hurled at you while you walk to court with your robing bag and bankers boxes in tow? Have you ever been nervous about how much you stand out in a professional setting? These events weigh on me over time as I strive to succeed in this profession. Like many lawyers, I want to achieve results for my clients and I want to be excellent.

When the Law Society asks all lawyers to take a moment and reflect on diversity and inclusion, it is because we are not as diverse and inclusive as we need to be. How many times have you encountered a senior woman of colour opposite you on your cases? Obviously, there are not satisfactory levels of diversity in various enclaves of the legal profession.

I have cried at work. Each instance was related to a racial issue. I cried when WXN published a list of Canada’s 100 most powerful women and only a handful of them were women of colour and this past year there was not a single black woman on that list. I cried when Benchmark Litigation published its annual list of the top 25 female litigators in Canada and none of the leading female litigators were visible minorities. I cried when the Toronto Star recently published an article about the majority of Torontonians being visible minorities but Bay Street firms (which is admittedly my line of sight) does not mirror Toronto’s diversity. There is no precedent for my success. While I wish I was a unicorn, I am human. I want to be a leading litigator but the statistics, data, and evidence has only demonstrated that my ambition may be beyond my reach.

Some suggest that we need time for racialized licensees to filter through the profession and soon the highest levels of our profession will reflect the diversity in our country. They cite the fact that proportion of racialized lawyers in the profession has doubled over 12 years. But as the touted “future,” I am not optimistic that we are close to achieving our diversity and inclusion goals. The “doubling” statistic does not tell the complete story. For instance, minority lawyers are over-represented in law practices with 5 or fewer lawyers and underrepresented in larger firms. The “doubling” statistic does not provide insight into the roles that minority lawyers have at their respective workplaces. Perhaps even more importantly, statistics do not reflect aspects of inclusion which are hard to measure.

Minority lawyers often pay the “minority tax.” I tell all of my mentees (the amazing women of colour who seek me out because I am an underrepresented presence on Bay Street) that, to be successful, they will have to pay a tax. They will need to be better, faster and smarter than everyone else to succeed. A piece of my soul dies whenever I give that advice. But I give the advice anyways because it is the right advice.  I remember when I would bring back exams where I scored 90% as a young girl and my dad would tell me that was not good enough because I was not white. I am sad to say that he was right. It was the early 1990’s then. But it is 2018 now.

I do not believe the Law Society’s requirement for all licensees to have a Statement of Principles goes far enough. Most licensees will copy and paste the Law Society’s precedents and call it a day. It will not change the deeply systemic issues plaguing the profession and Canadian society at large. But it is a step in the right direction and for that reason, I am supportive of it.

Some do not like the word ‘systemic.’ Unfortunately, it is the only word that describes what is going on. The only alternate explanation for the diversity numbers within the profession is that people are openly and actually racist. I do not believe that is true for the vast majority of those within the profession. The systemic issues are driven by unconscious bias, uneven access to opportunities, lawyers preferring to mentor lawyers who look like them, and the persistent unshakable feeling of being an “other,” among other issues.

I agree that I am privileged. I am privileged that I was born into a loving family, immigrated to Canada while I was very young and was born with a certain level of intelligence. I am privileged because a Bay Street law firm took a chance on me and by their acceptance I obtained a baseline legitimacy when I walk into a Court room. I am privileged because I work with so many allies who encourage me to work on diversity initiatives and encourage me to staff files as diversely as I want to. I never disputed my privilege. But I want more for myself and for others. 

I am a member of the Canadian Association of Black Lawyers. I attend Sistahs in Law and Roundtable of Diversity events. These groups are not counter-productive or exclusionary. I embrace these groups because I am trying to seek out people who look like me. If I did not actively participate in these groups, I may never encounter a female of colour in a professional capacity.

I have read the articles denying the relative disadvantage of racialized lawyers carefully. It saddened me to do so. I think those who hold this view fundamentally misunderstand the issues because they cannot see them from the perspective of minority lawyers. I think about my race every single day. I am not allowed to forget it.

Atrisha Lewis is a litigation associate at McCarthy Tétrault LLP in Toronto.  She has a broad litigation practice where she works on commercial, professional negligence, and intellectual property matters. She can reached at alewis@mccarthy.ca and Twitter: @atrishalewis

  • Not Rhetorical Questions

    K. Williams
    "I remember when I would bring back exams where I scored 90% as a young girl and my dad would tell me that was not good enough because I was not white. I am sad to say that he was right." Have you met a woman who is non-white, and who shows old transcripts to people to prove that she scored more than 90% when she was a young girl, and who has achieved more than you in the legal profession? "The only alternate explanation for the diversity numbers within the profession is that people are openly and actually racist." What are your premises? In other words, what statements are you assuming to be true and relying upon in the unwritten sequence of steps that you used to somehow deduce your conclusion? "I am a member of the Canadian Association of Black Lawyers. I attend Sistahs in Law and Roundtable of Diversity events. These groups are not counter-productive or exclusionary. I embrace these groups because I am trying to seek out people who look like me." Would you be willing to join an Association of Lawyers who Look Like Black People? If they look like Black people, then they might look like you. Also, somebody like Rachel Dolezal -- despite having parents with unacceptable faces -- might be able to make herself look Black enough to join the group. On the other hand, you asserted that: "These groups are not counter-productive or exclusionary." So, does that mean that they already accept anybody who makes enough effort to look Black? Alternatively, does that mean that you have defined the word "inclusive" -- a word that describes your goal -- in such a way that the faces of Rachel Dolezal's parents would be enough to exclude Rachel Dolezal herself?
  • Interesting article, but some of these claims need to be critically examined

    Carl Irvine
    Just a couple of comments, because without denying the reality of disadvantage experienced by racialized lawyers, the *perception* is often worse than that reality. Take, for example, the claim that big law lawyers are not representative of Toronto's diversity. Is that because of discrimination by big law firms? Maybe, but isn't a more likely explanation is that Toronto isn't the relevant population with which to compare them. After all, big law firms don't recruit people exclusively from Toronto, they recruit people from across Ontario and Canada, including from regions whose populations look very different from Toronto's. In my experience - the same as the authors - big law law firms *are* representative of the diversity of the broader population of Ontario and Canada from which they actually draw their lawyers (a proposition, which I'll show below, is reflected in LSO statistics). Indeed, that shouldn't come as a surprise, given that the Law Society's own numbers show that the current crop of new lawyers closely mirror the population of Ontario from which they are drawn. In 2015, just under 35% of new calls in Ontario self-identified as being racialized. By comparison just over 34% of Ontario's population of 25-34 year-olds - the demographic from which most new calls are drawn - were identified in visible minorities in the 2016 census. It's an awkward fact that, today's lawyers look a lot like today's Ontario - contrary to the author's assertion, we have achieved our diversity goals. Similarly, the claim that racialized lawyers are under-represented at larger firms needs a corrective lens. According to the LSO's own numbers (http://annualreport.lsuc.on.ca/2016/common/documents/LAR-Snapshot-2015-EN-Final.pdf), 13% of racialized lawyers work in big law firms (200+) compared to 14% of white lawyers. That's a rounding error difference. Moreover, the difference suggests that something other than discrimination is in play. Some racialized groups are *more* likely to work in big law firms than white lawyers (Chinese and West Asians), others are less likely (Arabs and Latinos) - you need to imagine a fairly eclectic form of racial prejudice to explain how big law lawyers have a racial affinity for West Asians and a racial animosity for Arabs. It's true that racialized lawyers are, generally, under-represented in *some* - not all - categories of mid-sized firms relative to white candidates. For example, only 11% of racialized lawyers work in firms with 100-199 lawyers, compared to 15% of white lawyers. Again, though, a closer look at the numbers suggests that there's a more complicated story going on. After all, if discrimination explains the paucity of Arab lawyers in big firms (200+ lawyers), how do we explain the lack of material under-representation of of Arab lawyers at firms with between 100 and 199 lawyers (14% of Arab lawyers vs 15% of white lawyers)? Do we really believe that the racial preferences of one set of large Ontario law firms are the polar opposite of another set of slightly larger Ontario law firms? Nor is it an answer to say "sure, some racialized groups do well, but others don't". That's true, but one rather suspects that the same would be true if you broke down the population of "white" lawyers among different ethnic groups (curiously, the LSO doesn't do that) as well. In that light, the presumption that any different in employment patterns - vis-a-vis firm size or practice area - is driven by racial discrimination (systematic or otherwise) needs to be critically examined. Could differences be explained by other factors? Might, for example, the relative absence of aboriginal lawyers in big law firms be explained by the fact that aboriginal lawyers are far less likely to live in Toronto, where big law firms have their offices? Or that aboriginal lawyers might have an interest in practice areas that serve their communities which aren't practiced by big law firms? Similarly, isn't it plausible that the "over"-representation of racialized lawyers in, say, immigration practice might reflect either greater interest in that field among people who are first or second generation Canadians (who are much more likely to be racialized than white) or that, given that new migrants tend to be drawn from non-white backgrounds, lawyers from those same backgrounds might have a competitive edge in serving them relative to white lawyers (for example, because they speak the same language or understand the culture). I worry about these sorts of articles, because they tend to be self-reinforcing, absent the sort of corrective lens set out above. Its sad that the author is upset by articles that, in her mind, show that the profession is unwelcoming to racialized lawyers - how can that not be anything by demoralizing. But surely knowing the fact that those articles (which typically recognize senior practitioners) reflect the articling class of 1995 and that the LSO of today looks very different should give her comfort. Why do we downplay it? Similarly, knowing that the profession DOES broadly reflect the population from which it draws (even if that's not Toronto), isn't that good news? Wouldn't it provide comfort to someone in the authors shoes to read an article that says, actually, you have just as good a chance of ending up in a biglaw firm as a white lawyer, a proposition which, apart from being encouraging, has the virtue of being accurate? Finally, I have trouble with the author's claim that, but for her participation in various professional groups for racialized lawyers, she might never meet a woman of colour in a professional capacity. If that's her experience, I can't argue with it, but in my decade or so working in biglaw I regularly and routinely worked with racialized woman lawyers in my day-to-day practice - some my senior, some my peers, some my juniors - to say nothing of other professionals (accountants) and clients. Maybe mine is the atypical experience and hers is the norm, but I would be very surprised at that.
  • Dangerous

    Ian Smith
    Its a shame that young "racialized" lawyers might actually buy into the author's harmful and ludicrous belief that their ultimate success in the profession is precluded by racism. To the author, racism in the profession is self evident (you would think that a lawyer, more than anyone, would appreciate the danger of that kind of elementary thinking). Presumptions and assumptions abound. Normal small talk experienced by all lawyers? Clearly racism. Being mistaken for an articling student or support staff? Racism. Her father's advice as a child? self-evidently correct. The author even purports to read minds; she just knows that other lawyers are (1) nervous around her (2) because she doesn't look like they were expected. Equally ridiculous is the belief that the only inference that can be drawn from the fact that minority lawyers are over-represented in smaller firms and under-represented on Bay Street is "open and actual racism" in the profession. Really? Is it impossible to infer that those patterns might be driven, for example, by choices and preferences for front line practice areas among "racialized" licensees? Moreover, dismissing the opposition as simply "not seeing the perspective of minority lawyers" and "not believing that minority licensees are disadvantage" is a gross simplification that conveniently ignores a number of valid criticisms of the report and the Statement of Principles (e.g., no obligation at law, compelled speech, incomplete data). Applying this generalization actually leads to the absurd suggestion that the "racialized" lawyers who have spoken out against the Statement of Principles and the assumption of relative disadvantage are guilty of failing to understand the perspectives of "racialized" lawyers.
  • Dangerous ?

    Kay Sanya
    Ian needs to live in a world of reality. Having one of the most popular surnames tells me he has not had to walk in the shoes of a minority and female to boot (yes, Ian would call it generalization). ".. harmful and ludicrous", "elementary thinking", "normal small talk" (the famous locker room talks ?), "ridiculous", all seem to tell me that Atrisha has met an Ian Smith in her professional travels.
  • being a woman in the profession : see 1980's reports by LSUC

    Dianne Grenier
    Some of the same experiences are mine in my 33 years of practicing law most notably while in private practice....as a woman. There is a reason women leave the profession ....
  • Mostly Right

    John Lefurgey
    I agree with virtually everything Ms Lewis says except for her view that the Statement of Principles is necessary and appropriate for lawyers. I agree there is racism and discrimination in the practice of law, as there is in society (though a couple of her comments about her own experience are probably reflective of looking young as much as being black). I agree that as a white, male lawyer I probably had it easier than the average black lawyer of any sex of my generation. It may be true that black lawyers are over-represented in small firms, but I chose to go that route so I can't say that being in a small firm is a bad thing (while recognizing that choosing to be in a small firm is different that not being accepted in a big firm). I fully accept that to be discriminated against because of colour, gender, sexual identity or religeous belief is bad and should not be acceptable. As far as I know I don't discriminate against anybody for any reason unrelated to their personality and how they relate to me. Why then, do I have to sign on to this Pledge of Non-Discrimination? It rankles me. One of the reasons I'm a lawyer, and practice criminal law, is because I question authority and don't accept, or like, being told to do things, "because". Why should I sign a pledge not to do something I don't do anyway. Should I sign a pledge not to beat dogs, a pledge not to push old ladies in front of cars? I am affronted by this mandatory pledge to do what a normal, "right thinking" person should do. I am a normal "right thinking" (by 2017 standards) person. I have already pledged to uphold the law and be an all around good guy. Wasn't that part of the Oath/Affirmation at the Call to the Bar back in 89? I won't belabor the point more than I have. I agree with most of what was said. I hate this purity pledge. It is distasteful.