Suing for Equity's Sake

MacKillop says: “Rule 5 particularly applies to the legal profession, and has never been litigated. Is a court willing to enforce the implied term in the Rules of Professional Conduct?”

This is not the first charge of sex discrimination at a major Canadian law firm; at least two other large Bay Street firms are reported to have had complaints made against them but quietly settled out of court. And the issue of retention of women in the practice of law has become increasingly prominent in the last decade, with law societies striking task forces to study the issue, and releasing reports and recommendations.

“In my opinion, this type of litigation is going to advance the interests of women lawyers across the country,” says MacKillop, in demonstrating “the failure to break down systemic barriers.”

On a warm summer afternoon, flanked by her lawyers, Diane LaCalamita meets with Canadian Lawyer for an exclusive interview. Her story, she says, begins with her family background: the granddaughter of Italian immigrants to Canada, the daughter of a photographer father and a trailblazing pharmacist mother. LaCalamita excelled academically, and after studying life sciences at the University of Toronto she discovered intellectual property in law school.

Following graduation and completion of her articles at then-IP firm Sim Hughes Dimock, she earned an LLM from the University of London, England, specializing in IP and information technology law. Her career then led to another IP boutique, Deeth Williams Wall LLP, then to Aird & Berlis LLP.

Around 2002, McCarthy Tétrault was starting to build an IP sub-litigation group and invited her to join. “I had a good reputation in the bar and in the field for at least 10 years,” says LaCalamita. “I was a solid performer and I had the senior-level skills and expertise [in IP, pharmaceuticals, and biotechnology] that they wanted to build their profile in these practice areas.” She chose McCarthys over other firms for the opportunity “to be in on the ground floor” of this IP sub-litigation group.

But her expectations weren’t met at the new firm. Hired as counsel in March 2003, LaCalamita says she understood she would be allowed to continue a combined solicitor/litigation practice, and that she would be recommended and considered for equity partnership commencing January 2004.

Neither, she claims, turned out to be the case. Three years later, having been promoted to income but not equity partner, she was let go. McCarthy Tétrault paid her $200,000 in severance. LaCalamita, who is currently not working but looking for a new position, had been earning $300,000 a year and is now seeking $12 million in damages.

In its statement of defence, McCarthys denies LaCalamita was promised she would be able to practise law as both a solicitor and a barrister, or that she would be made an equity partner within one year of being made an income partner.

“Admission to equity partnership requires ‘enthusiastic reception’ by the partners of the firm,” and the plaintiff “never performed at the level required for admission to equity partnership,” says the statement of defence, citing the plaintiff’s inability to meet deadlines or the minimum expectation for billable hours, and her poor judgment as a litigator. McCarthys is represented by Terrence O’Sullivan and Michael Sims of Lax O’Sullivan Scott LLP.

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Neither side’s allegations have been proven in court. MacKillop says he expects the case will go to trial sometime in 2009. “We’re going to be pressing the case fairly hard in terms of getting this in front of a judge in a timely way,” he says. The next step will be the document production process.

But the issues that have been brought up by the case continue to haunt the profession. The retention and promotion of women is “an institutional challenge, and I think everyone is working sincerely, but not hard enough, to deal with it,” says Julie Hannaford, a family law practitioner who was an equity partner with Borden Ladner Gervais LLP for 12 years before launching her own firm, J.K. Hannaford Barristers, in July 2006.

Female lawyers are still not given the same opportunity to shine as their male colleagues, Hannaford contends. At BLG, “I was practising in an area that wasn’t a core area, [and] combined with fact that I was a woman,” she says she felt she was losing rather than gaining respect over time. “When you start to feel marginalized, you begin to act the way you feel people perceive you.”

Law firm programs designed to retain women will fail unless female lawyers are consistently mentored by senior practitioners, either male or female, says Hannaford. “Women are . . . not trained to interact well with each other . . . to reach out and form networks and teams, the way men are trained to do. We only have our own selves as references to evaluate ourselves against,” which can lead to a lack of confidence and of trust in oneself.

Hannaford points south of the border to “far more progressive” dialogue on the promotion of women and minorities in the workplace. Affirmative action legislation in the United States is requiring firms to hire more from underrepresented groups, resulting in an expected demographic shift over the next 25 years within the management of banks and other large organizations that are the clients of law firms.

“That’s putting a lot more pressure on private law firms to boost women” and minorities, in part in order to present a more progressive image that will appeal to clients.

Laurie Pawlitza, a litigator with Torkin Manes Cohen Arbus LLP in Toronto, is co-chairwoman of the retention of women in private practice task force at the Law Society of Upper Canada. The project, which has surveyed nearly 900 lawyers in Ontario, released its final report in May.

Women lawyers still leave private practice two-and-a-half to three-and-a-half times more frequently than do men, the task force found; however, this has more to do with women’s competing personal and professional roles than with a sexist work environment.

“We found, almost overwhelmingly, that women had a great deal of difficulty maintaining all the roles they had to maintain during those critical years” following the call to the bar, which now takes place in Ontario at an average age of 31, says Pawlitza. “Women will be having children at the same stage as they move through the initial years of private practice,” and still bear a far greater responsibility for the household and childcare, even if they are working at the same jobs as their spouses. “It’s this confluence of events that the retention project concentrated on,” says Pawlitza.

LSUC’s newly launched Justicia Think Tank will see the society working across the province with a group of large and medium-sized firms committed to implementing programs aimed at improving the retention of women. One firm that particularly impressed Pawlitza was McCarthy Tétrault.

“We spent a lot of time with a lot of different firms” during the course of the consultations, she says. “There’s no question that McCarthys has been, by far and away, the most thoughtful and progressive on these issues. They have done lots of things we’ve adopted for our project.”

In her office on the 53rd floor of Toronto’s TD Tower, Kirby Chown, the Ontario regional managing partner of McCarthy Tétrault, is happy to talk about what her firm is doing for its female lawyers, though she declines to discuss the LaCalamita case while it’s before the courts.

Chown articled at McCarthys and returned to work there following her call to the bar in 1981. “When I became managing regional partner in 1992 . . . one of the things we looked at was the issue of the advancement and retention of women,” she says. “I was interested in having our firm take some steps.”

Chown, who recently won the Women’s Law Association President’s Award for the advancement of women in the legal profession, and has also won the LSUC award for the same work, points first to the “strong women’s network” that has been developed in her firm’s offices to promote female lawyers’ practices.

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Advancement of women in the firm is a top priority, she says, which means helping its women lawyers build and manage their careers. This includes a more female-focused business-development practice (a golf clinic for female lawyers and their female clients; foursome social outings that don’t leave a woman lawyer alone with a male client; a big annual social event for women only, such as the cocktails, dinner, and chuckwagon races at the Calgary Stampede).

“There are significantly higher numbers of women who are buyers of services, so understanding women clients is equally as important as focusing on women lawyers,” says Chown.

To increase women lawyers’ profile within the firm, a newsletter was developed to showcase them; senior female associates from each of the firm’s offices now put it out three times a year, in English and French. It covers its women partners, pro bono work, those having babies, and includes advice and “support on the path to partnership.”

The firm has also developed an extensive program to help new mothers and even fathers. “It’s a very difficult transition, becoming a parent and trying to stay focused on a practice,” notes Chown, who herself became the mother of twin boys in the first year of her own practice, nearly three decades ago. McCarthy’s “maternity-leave buddy program” matches each new mother with a senior woman lawyer “who’s been through it,” says Chown.

A custom-made parental-leave tool kit is available online, filled with practical information on flex time and useful articles on parenting. And six hours of confidential coaching by a trained therapist is also available to lawyers and their spouses.

And mentoring is very important, she says, adding that “we don’t have enough senior women to be mentors.” Still, the firm has “a good formal program,” and, with consulting firm Catalyst, it has also developed peer-to-peer mentoring within practice groups.

But, in the profession overall, LaCalamita’s lawyers point to the gaping discrepancies in the status of female and male lawyers. “There are women partners I know who’ve had two or three kids: senior associates make more [than they do],” says MacKillop. “And there are difficult discussions with large firms about time,” such as, “If you’re not going to work the hours, how can I trust you with these files?”

Eberts, a prominent litigator who has worked on the equity issue as a law society bencher, and was one of the co-chairs for the preparation of the CBA-Ontario (now OBA) contribution for the Bertha Wilson task force on women in the legal profession, says despite the perception that women generally have achieved equality with men, they are in fact falling behind. In the legal profession there has been good progress with women advancing in government service and within corporate counsel ranks, and after that on the bench, she says.

But private practice has fared less well. “All the studies are turning up the same information over and over,” says Eberts. “The strategy of trying to reward voluntary efforts of compliance [with equity guidelines], or coaxing [firms] to do it, are simply not working, because they’re not doing it.”

In equity lawsuits, she adds, courts tend to find in favour of female blue-collar plaintiffs, but find against those who are professional and wealthier, or who are seeking equal access to power or money. “The time is certainly ripe for the law society to be dealing with [the equity issue], and the profession was very positive about the [Ontario] law society taking a leadership role,” says Pawlitza, who has admitted to frustration at the lack of advancement of women at her former (now disbanded) firm of Goodman and Carr LLP, where she was also an equity partner.

On the West Coast, Kerry Simmons is a member of Young Lawyers, the Women Lawyers Forum, and a past chairwoman of Women Rainmakers, Vancouver Island; called to the bar in 2000, she practises litigation and family law with Cook Roberts LLP in Victoria. Simmons says she hasn’t found discrimination toward women a concern among her colleagues, although there is consternation that more women than men are leaving private practice.

“I’ve found that the stories I’ve heard from women who are senior to me, and the concerns they express, are not as prevalent as they seem to have been at [one] time,” she says. “So I think there’s improvement in the way the profession has adapted to women being in it, and part of it. . . . [It] is definitely improving all the time.”