I received an email today with an attachment from the Canadian Bar Association.
The attachment was a document entitled "Measuring Diversity in Law Firms A Critical Tool for Achieving High Performance. (Ironically enough, the Guide was authored by Dr. Lorraine Dyke of Carleton University - you know, the University that suggests that diversity allows them to exclude Israeli academics on campus. The University that won't allow groups to raise money to fight illnesses that strike predominantly caucasian people).
The suggestion is that this Guide be employed by all lawfirms to assure that they are developing a climate of social diversity in their hiring practices - which I have no objection to, in principal. In reality, however, both the Guide and the suggested effort leave much to be desired.
A copy of the Guide can be found here.
My comments to the CBA were as follows:
It must be nice to practice law in a firm which has such an ability to generate fees from corporate and institutional clientele that they can devote significant time and resources to assuring that they have a diverse workplace.
Our law societies, and our CBA, sadly, have become quite estranged from the reality of small firms and solo practitioners – such that they send us information such as this, and by implication, provide yet further evidence that the issues that matter to the more typical “lawyer on the street” do not matter to the CBA or our respective Law Societies. I note with no small interest that the references included in the report do not come from any lawyers that actually have to send bills to individual consumers for the bulk of their livelihood – those references coming from Davis LLP, Air Canada Corporation, Miller Thomson LLP, Fraser Milner Casgrain LLP, and Canada Lands Company.
These entities all have the incredible good fortune to be able to bill their services to either the taxpayer or faceless bands of shareholders.
You know – billing files like the $313 million arrangement between Adamus Resources Limited and Endeavour mining, touted by Fraser Milner Casgrain LLP on the front page of its website.
Or files like the legal services provided in the $5 billion New Millennium Capital agreement with Tat Steel undertaken by Davis LLP, also proudly touted on their website.
Not many $5 billion files being worked on in our firm, I must admit.
Unfortunately, I am one of the great unwashed in Canada – lawyers from small firms or solo practitioners who have to consider their clients’ means when they send out a bill, and have to look their client in the eye when they ask them to pay a bill which will actually impact on their ability to perhaps feed their children or pay their mortgage. I wonder when the last time in house counsel for Air Canada had to do that?
Yes - I am a lawyer in a small firm (7 lawyers) in a small city, where the luxury of spending time on erudite and interesting discussions comes directly from our own bottom line – but, nonetheless, I have take some time out of my otherwise busy and stressful practice to offer my comments as follows:a) Firstly, in rural Alberta, contrary to the dream world which must exist in firms like Davis LLP, Air Canada Corporation and Miller Thompson LLP, I can imagine the reaction of our staff if they were presented with a survey (as confidential as it would be) asking about religion, racial background, and sexual orientation. Of course we could, as suggested in the Guide, reduce that stress by paying for an outside firm to conduct the survey (see comment regarding small firm’s bottom line);
b) Following up on the first point, I can then imagine the stress and loss of income to our small firm resulting from a disgruntled employee now making a Human Rights complaint against our firm which they would allege resulted from the data received and the answers given (or refused to be given). I am sorry to say, but in the current legal/political climate in Canada regarding Human Rights Commissions, there is little ability to predict with any certainty what effort and what consequence might result from such a complaint – and pardon me if I throw up in my mouth just a little bit over the comforting comment in the guide that with regard to such a complaint “all require evidence of adverse consequences based on a listed ground for an action to constitute discrimination.” I would prefer, candidly, to avoid the offer of a possible ticket to the human rights circus for our firm, in favor of simply allowing our staff to keep personal matters, well, personal;
c) I note that the study only vaguely touches upon the most interesting question – which is how we achieve “diversity” without effectively asking potential job applicants, “So are you gay or transsexual?” The Guide points out that “Many human rights commissions have issued guidelines that employers refrain from asking questions related to prohibited grounds during the hiring process unless they relate to “bona fide occupational requirements”. Basically, what the Guide is telling us is that we should question our employees in order to obtain a more specific understanding of the depth of our diversity – but, at the end of the day, offers effectively that this effort is more or less window dressing because we can’t really make a concerted effort to target hiring towards certain groups whose sensitivities may not be readily apparent at hiring time (religious minorities, alternative sexual orientation);
Meanwhile, speaking as a family lawyer, we have the Chief Justice of our Supreme Court of Canada telling us that we bill too much, but that we have to conduct relatively exhaustive examination of the financial affairs of the opposing party to have a sustainable agreement (i.e. do more, for less), we have our respective law societies telling us to provide more work on a pro bono (free) basis, and we have our respective legislatures making it easier and easier for people to do their own work on a pro se (without lawyer) basis, clogging up the system, making it disadvantageous to hire lawyers in the first place when quite often Judges are put in position of being de facto opposing counsel (for free by the way).
When will the CBA undertake a study to comment on the burden sought to be placed on the average lawyer by ivory-tower jurists and other big thinkers who have the luxury of existing in a position which doesn’t require that they bill and collect, or don’t eat?
When will the CBA provide a report outlining the utter failure of the “access to justice effort”?
When will the CBA produce a study commenting on the practical impossibility of providing a “flexible work environment” (that is, fewer working hours) for the same pay, while at the same time, reducing the amount we charge our clients for our services?
Sadly, I and many thousands like me do not work in the rarified air of counsel at Davis LLP.
It would be nice for the CBA and for our Law Societies to perhaps, from time to time, recognize that.