Deregulate All the Lawyers

Why deregulation is the solution to the conflict around the “Statement of Principles” (in addition to being good for access to justice)

There was, we can now confidently say, a great deal of rancour in the Ontario legal profession about the Law Society’s attempt to force its members to abide by a “Statement of Principles” acknowledging a non-existent “obligation to promote equality, diversity and inclusion”. This rancour having let to the election last month of slate of benchers pledged to repeal the “Statement of Principles” requirement, there is now a great deal of rancour among the legal profession’s social justice warrior faction. The #BencherElection2019 hashtag on Twitter leads one to a collection of laments about the past, present, and future of the legal profession. Of course, the election result suggests that the wailing chorus represents only a limited section of the profession, but it is certainly not a negligible one.

Being a vocal opponent of the “Statement of Principles” requirement, I was, of course, delighted by the election’s outcome. But I too am not especially optimistic about the future of the legal profession as it is currently constituted. I don’t know whether the StopSOP momentum can be kept up in 2023, and in 2027, and in 2031… Perhaps the social justice brigades will have moved on, and the whole thing will no longer be an issue. But I would not bet on it just yet. It’s certainly not inconceivable that a People’s Front of Ontario Lawyers, or an Ontario Lawyers’ People’s Front, will come to run the Law Society at some point. And judging by their role models, when they do so, they will not be taking prisoners.

Fortunately, there is a way to avoid this outcome and, more broadly, the transformation of Law Society elections into a battleground of total culture war, in which liberty is supposedly pitted against equality, and the losers, whoever they may be, fear for the integrity of their souls. It is deregulation. The deregulation of the legal profession is a very good idea on other grounds too, notably for the sake of access to justice, as Ian Mulgrew recently pointed out in the Vancouver Sun. (One particular sub-genre of the post-Bencher election lament consistent of the supporters of the “Statement of Principles” saying that lawyers should worry about access to justice instead of opposing the Law Society’s impositions. I think this is a false dichotomy, but I hope that those who are concerned about access to justice, whatever they might think about the “Statement of Principles”, will join my appeal for deregulation!) There is no reason, really, why the law needs to operate like a medieval guild. But this is not a new idea; just one that needs to be constantly repeated. The possibility of using deregulation as a tension-defusing mechanism is more novel. Still, the case is a rather obvious one.

The reason why the “Statement of Principles” provoked such fierce resistance is that those of us who refuse to submit to state-sponsored imposition of a mandatory ideology were put before a stark choice: trample, in Vladimir Mayakovsky’s words, on the throat of our own song, or lose the right to practice law. The reason why the proponents of the “Statement of Principles” are so aghast at its opponents’ electoral success is that they think it speaks so very poorly of a profession ― and a guild ― to which they too belong, and about which they care (however misguidedly they might do so, by my lights). We are, apparently, stuck together ― at least until the Ontario Lawyers’ People’s Front, or the People’s Front of Ontario Lawyers, can liberate the profession from dastardly dissidents. And we are bound to make each other miserable.

But not if the legal profession were deregulated. There is more than one way of doing this. Ideally, the restrictions on who can provide legal services, and even the lawyer licensing process, would be scrapped. (It would make sense, of course, to continue requiring anyone providing such services to carry insurance appropriate to the nature of the service the person is providing.) But as a second-best alternative, what needs to go is the monopoly of the existing Law Society of Ontario. Let any group of lawyers, subject perhaps to a moderate minimum membership requirement, start up its own law society, with its own licensing process, and its own membership rules. If Lawyers for Social Justice want to require their members to have a statement of principles abjuring whiteness in the name of the gestational parent, the daughter, and the holy ghost, amen to that. If the Cult of Hayek wants to demand a statement of principles demonstrating personal valuing of free markets and the Rule of Law, amen to that too. And if Lawyers for Mere Professional Competence don’t want to impose any such rules, amen to that again, and where can I sign up?

The point is that, in the absence of a monopoly ― if there isn’t one body whose decisions, whether made as a result of (low-turnout) elections or on the basis of revolutionary racial consciousness, have the ability to allow or deny people the ability to make a living ― we don’t have to constantly fight one another about the direction of the profession as a whole. We can and will continue to disagree, but the stakes of the disagreement will be lower. At most, we might be fighting for greater memberships in our respective clubs ― and we will be doing that by trying to persuade people to join us, rather than our opponents, instead of peremptory demands that they adopt our fatal conceits, or else.

Now, despite my professed equanimity, am I really rigging the game in favour of Cult of Hayek here? Why should the supporters of the “Statement of Principles” endorse deregulation? Well, for one thing, because they now know that they are not as popular as they thought. They might make a comeback in four years, but then again, they might not. Deregulation would make it possible for them to organize their affairs on their preferred principles, regardless of their lack of popularity among the broader profession. They could even be the shining light to which more and more lawyers flock, leaving us dinosaurs on the ash heap of history. And even the proponents of the “Statement of Principles” they do come back, it will be over the objections of a sizable part of the profession, and not just the measly 3% who, we are told, refused to tick the “Statement of Principles” box on our annual reports. Instead of advancing their agenda, they will be fighting to eradicate dissent, much more confident now than it was before the last election. And while some of them are aspiring totalitarians who would be quite happy to kick people out of the profession for non-conformity, I do believe that more than a few will blink, especially if there is a lot of kicking to be done. They should conclude that they have better things to do, and get on with the building of social justice in one part of the legal profession.

Of course, right now, it is the opponents of the “Statement of Principles” who will speak with the strongest voice in the affairs of the Law Society of Ontario. Their first order of business, I hope, will be to do what they were elected to do: repeal the state’s imposition on our consciences. But I also hope that they will not stop there. They will need to ensure that such impositions are impossible in the future. But also, that the legal profession in Ontario does not become consumed with the culture war into which it has been plunged. I call on all the newly elected Benchers, but especially on those elected under the StopSOP banner, to support deregulation, for the sake of the legal profession, as well as of access to justice. And I hope that other lawyers, wherever they might stand on the cultural issues du jour, will join this call.

The Statement of Principles

Thus far, I have stayed out of the controversy surrounding the Statement of Principles [SOP] because I have nothing new to add. Leonid has, in a series of posts, outlined the in-principle objections to the SOP, while others have suggested that the SOP is a modest, necessary remedy for a difficult problem.

But as the debate has evolved, I think something has been lost in the shuffle. Let’s assume that the SOP is constitutional. There are still a number of unanswered questions about the efficacy of the SOP, the way it was adopted, and the strength of the evidence underlying it. Related questions: does the SOP do anything to actually rectify the problem it identifies? And if not, if we believe that the objectors to the SOP are acting in good-faith, shouldn’t we expect better from the LSO given its status as a regulator in the public interest? I think so. That the SOP is toothless is a sign of regulatory excess and pointless, costly regulation that won’t even accomplish the goal it sets out to solve.

I do not purport to say anywhere here that discrimination is not a problem. The experience of racialized licensees should be prioritized, and the LSO should be applauded for turning its mind to this issue at all. At the same time, I think it is important that we do not denigrate the sincerity of the “conscientious objectors” to the SOP. I need not link to the various hues-and-cries on Twitter, assaulting people like Leonid and Murray Klippenstein for being racist, privileged, etc etc. I think we should take as a given that the conscientious objections are rooted in deeply-held philosophical commitments. For that reason we should respect them. Leonid’s objection, for example, is exhaustively set out in his post here, where he outlines the genesis of his general philosophical orientation and how it applies to the SOP. We should assume that if the SOP is enacted, it will exact a constitutional cost—one that may or may not rise to a constitutional violation, but a cost nonetheless.

The SOP was adopted as part of a suite of initiatives designed to address the problem of systemic racism. The SOP is one requirement that exists in this suite of initiatives. The collection of initiatives was occasioned by a long consultation period, along with a study designed by the LSO and a communications firm “to encourage law firms to enhance diversity within firms, based on identified needs, and create reporting mechanisms.” The study consisted of:

  • Interviewing key informants
  • Organizing, managing, and recording the discussions in 14 focus groups with racialized lawyers and paralegals
  • Organizing, managing, and recording the discussions in two focus groups with non-racialized lawyers and paralegals; and
  • Designing a 35-question survey and collecting data from a large group of lawyers

Somehow, from this process, the SOP was born. None of the evidence gathered in the study pointed to the SOP as a necessary—or even desired—policy mechanism to accomplish the goals of the overall LSO Equity, Diversity, and Inclusion [EDI] Initiative. The causal link between the SOP and “accelerating culture shift” was never explored by any data in the study. All that was established by the study was that there was, indeed, discrimination in the profession.

But even on that score, there is no clarity on the breadth of the problem, and for that reason, no clarity on the mechanisms required to solve it. In this case, the challengers to the SOP have outlined some compelling reasons in an expert report why we might doubt that the SOP is a tailored, evidence-based policy—assuming, again, that the criticisms of the SOP levelled by a number of quarters is in good-faith. For one, there is a major confirmation bias issue in the study commissioned by the LSO. Survey respondents were already aware about the goals of the study. Participants in the focus groups were separated based on whether they were racialized or not, which does not lend itself to a random discussion of the issues. Perhaps most prominently, there was a sampling bias problem that led to the data underpinning the recommendations presented to Convocation—only a small portion of the over 40 000 licencees responded to the survey data, and according to the expert report, “it is possible that some licensees completed the survey multiple times…”

None of this should be taken as a given simply because an expert says so. This is an expert report filed by a party in the litigation. But it at least raises legitimate questions about the methodology underpinning the solution adopted by the LSO. Clearly, discrimination might be a problem in the profession, but we have no idea how much of a problem it is.

Even if we had some scope of the problem, the SOP is not necessarily linked to solving it. If we assume that objectors to the SOP are acting in good-faith, and therefore we believe that there will be some cost to them associated with abiding by the LSO’s edict, then we should be doubly sure the SOP will actually do something to solve the problem it purports to solve. But the LSO has offered no evidence that this particular policy mechanism is required, cost-efficient, or is even relatively better than other options. Nor has it explained why this policy mechanism is necessary for the soundness of the rest of its EDI policies.

Why should anyone care about this? Shouldn’t the LSO simply just be able to act in the face of a problem?

We know that inclusion in the legal profession is a problem, but as a regulator with delegated legislative authority under the Law Society Act, the legislature implicitly subjected the LSO to democratic norms. It established a system of elections in the enabling legislation itself, which can be interpreted to express a legislative desire to ensure that there is some accountability mechanism within the LSO for the exercise of its powers that are legislative in character. The LSO has the power to compel licensees through rules and bylaws, none of which need to be subject to any approval by the Cabinet (unlike the exercise of delegated legislative power to make regulations—see 63(1) of the Law Society Act). While there is an obvious mechanism to hold benchers and the administration of the LSO accountable through elections, the power of compulsion that the LSO exercises—and the broad powers it has been conferred by legislatures and the courts—counsel in favour of holding the LSO to robust standards of evidence-based policy-making. In other words, not only do we need to know that discrimination is a problem, we need to know whether it is truly “systemic” in order to craft appropriate solutions.

There is no evidence, even on a common-sense basis, that the SOP will do anything to solve the problem it identifies, assuming the problem is framed as the LSO says it is. One might say that the SOP will force licensees to reflect on the things they must do to ensure a more inclusive profession. I think this is Pollyannaish. More likely, people will file rote statements without reflecting on them, as Atrisha Lewis points out. Or they will simply write something that fits with what the licensee perceives the LSO to want. Unless the LSO is going to police the substantive content of each filing, there will be no way to know who is genuinely reflecting on the issue. Given the vagueness of what constitutes a “violation” of the requirement, we can expect discretion of prosecutions under the Law Society Act against those who do not adopt a “proper” SOP. The costs continue piling up when one thinks of defending the SOP in court, and the cost of enforcement.

Someone has to ask if the EDI initiative requires this SOP given the costs it exacts against principles of good government and against the good-faith constitutional objectors. The SOP seems to be questionable response to a problem of unknown proportions that raises significant constitutional concerns, even if those concerns do not constitute an in-law constitutional violation. I gather that the LSO perhaps did not expect this to be an issue, and are now painted into a corner. Like most administrators, they do not want to cede any regulatory power. So they must defend the SOP in court. But I think even they must recognize that the SOP is probably a bad policy mechanism for the problem of discrimination, no matter its scope.

The LSO should be held to a higher standard than this. We should expect evidence-based policy-making in the administrative state, especially where the LSO has the means (through the exorbitant fees it charges) to conduct properly designed research studies and to lessen the informational uncertainty designed to solve the problem. Some literature in administrative governance focuses on the cost of acquiring information within public institutions. Here, the costs for the LSO on this particular problem are not particularly high. And yet, we are left with a dog of a policy mechanism, one that is unlikely (even on a common sense basis) to solve the problem it purports to solve. At the same time, the costs of implementing it and enforcing it—both monetary and constitutional—are high.

All of this puts the SOP on the horns of the dilemma. Either it does something to accomplish the goal it sets out—it compels people to concern themselves with EDI as the LSO understands it—or it does nothing to accomplish anything, in which case it is costly. Surely our public regulator, that we ensconce in yearly fees, can do better.

This is fundamentally different than the claim that the SOP doesn’t go far enough. The problem is that it doesn’t go anywhere at all. I doubt it will solve any problem whatsoever.


Why I oppose the Law Society of Ontario’s “statement of principles”

I have repeatedly argued, here and elsewhere, that the Law Society of Ontario’s requirement that its members “acknowledge[] [an] obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” by means of a “statement of principles” is wrong in principle, illegal, and unconstitutional. Fortunately, Ryan Alford and Murray Klippenstein are challenging the validity of the Law Society’s demands, backed by the Canadian Constitution Foundation. For my part, I have provided an affidavit for their application (which has been served on the Law Society, but not filed with the court just yet), primarily to illustrate that the “statement of principles” policy applies far more widely than do non-discrimination obligations under the Ontario or federal human rights legislation, to which the Law Society has been endeavouring to misleadingly equate it.

But of course the affidavit is also an opportunity to explain why I oppose the Law Society’s demands, and will not comply with them, so I thought it worthwhile to reproduce an adapted version of it here. (I have removed some of the affidavit-y bells and whistles, so that it reads more like a normal post, and have added some links.) Of course, since an affidavit is meant to be a personal statement, not legal argument, it is a more personal and less argumentative text than my normal posts. Here goes.

I am a Senior Lecturer (a position equivalent to that of an Assistant or Associate Professor) at the Auckland University of Technology Law School. I hold degrees in civil law and common law (BCL/LLB (Hons)) from the McGill University Faculty of Law, as well as a Master’s degree (LLM (Legal Theory) and a doctorate (JSD) from the New York University School of Law.

I was called to the Bar in June 2010 and have been a member of the Law Society of Upper Canada, now the Law Society of Ontario, (the “Law Society”) in good standing ever since. However, I am not and have never been a practicing lawyer. From September 2010 to August 2016, I was a full-time student; since August 2016, I have been a full-time academic. I have no clients and no employees. To my knowledge, no one among my co-workers is a fellow licensee of the Law Society. I have resided in New Zealand since August 2016, and have not resided in Ontario since August 2010.

My Interest in Freedom of Conscience and the Rights of Others

My research interests range broadly across constitutional and administrative law, with a focus on Canada. Among the areas on which I have published is the freedom of conscience and religion. My LLM thesis, subsequently published as a peer-reviewed article, was concerned with religious exemptions and the Rule of Law, exploring the importance of individual conscience in reconciling the claims of religious believers and the demands of legal conformity. Another of my peer-reviewed articles argued that the reference to the Queen in the Canadian citizenship oath infringes the freedom of conscience of those republicans who are required to take it.

In addition to scholarship, I have written about freedom of conscience and religion in multiple posts on the award-winning blog Double Aspect, which I created in 2012, of which I first was the sole author (until July 2018) and now am a co-author. In particular, I have been critical of various attempts in Québec to deprive state employees of their right to wear so-called “ostentatious religious symbols”. I have also published an op-ed on this issue. I also published multiple posts on freedom of conscience of republicans objecting to the citizenship oath.

In this work, as well as in writing on a number of other issues (notably relating to freedom of expression in the electoral context), I have consistently championed the rights of individuals and groups with whom I profoundly disagree, including many whose views I reject. I have defended religious exemptions and other forms of accommodation for religious believers, but I am agnostic. I have defended the freedom of conscience of republicans, but I am a monarchist. I have defended the freedom of expression of student movements and trade unions, but I strongly disagree with the aims of both.

The Statement of Principles Requirement

At the December 2, 2016 meeting of Convocation, the Law Society adopted the requirement that each licensee “create and abide by an individual Statement of Principles that acknowledges [his or her] obligation to promote equality, diversity and inclusion generally, and in [his or her] behaviour towards colleagues, employees, clients and the public”.

I learned of the adoption of the Statement of Principles requirement after the fact, via an e-mail sent by the Law Society on September 13, 2017, entitled “New Obligations for 2017 — Actions you need to take”. That e-mail said that: “You will need to create an abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity generally, and in your behaviour towards colleagues, employees, clients, and the public.” Until then, I had not received any correspondence from the Law Society on that topic or which alluded to it, and was not aware that Convocation had adopted the Statement of Principles requirement.

This requirement is applicable to me as a licensee of the Law Society, even though I am not, and never have been, practicing law in Ontario, and, to my knowledge, have no colleagues, students or subordinates who, are licensed to practice law in Ontario. As the Law Society explains on a “Frequently Asked Questions” page on its website, “[i]f you are licensed by the Law Society, you must meet this requirement regardless of whether you are currently practising law or providing legal services”.

I have not complied with the Statement of Principles requirement. I have provided the following explanation for my refusal to do so in my 2017 Lawyer Annual Report:

No existing legislation, primary or delegated, imposes on me or on any lawyer in Ontario an obligation to promote equality, diversity and inclusion. In particular, human rights legislation and the Rules of Professional Conduct prohibit engaging in discrimination, but say nothing of promoting any particular values or ideals. The Law Society has no right to be demanding that its members acknowledge an obligation that does not exist, and one that could not be constitutionally imposed, since in a free society, the state or its instrumentalities, such as the Law Society, have no business imposing values on individuals, much less demanding that individuals promote values. The Law Society’s policy in this matter is no less totalitarian than the arbitrator’s letter denounced by a majority of the Supreme Court in National Bank of Canada v Retail Clerks Int’l Union, [1984] 1 SCR 269.

I have elaborated these views in a series of blog posts, listed below, which I invite the Law Society to read:

Reasons for My Objection to the Statement of Principles Requirement

I consider myself a conscientious objector to the Statement of Principles requirement, and will not comply with it in the future. As noted above, I have a longstanding interest in freedom of conscience, and have displayed a consistent and public commitment to the rights and freedoms, especially those having to do with belief and expression of belief, of individuals and groups whose religious, moral, or political opinions I do not share. I claim the same freedom for myself.

I regard the Statement of Principles requirement as a violation of my freedom of conscience, freedom of opinion, and freedom of expression. The requirement states that I must promote specific values: equality, diversity, and inclusion. I believe that promoting values requires me to hold them. Otherwise, this promotion would be insincere; indeed, it would be a lie. And it is my sincerely held belief that, as a free individual, I must only hold those values that I freely choose for myself, and must not embrace those values imposed by an authority exercising coercive powers conferred by the state — i.e. the Law Society.

My fundamental belief that a free individual must choose his or her own values, think for him- or herself, and reject the authorities’ views of what he or she must believe in, which animates my scholarship and blogging on freedom of conscience and compels my refusal to comply with the Statement of Principles requirement is a product, in part, of family upbringing, and in part of my broader philosophical views.

As to the former, I was born in what was still the Union of Soviet Socialist Republics, and my parents took pride in ensuring that my brother and I grew up speaking Russian at home and aware of Russian history after our move to Canada. Part of my parents’ endeavours — indeed a very substantial part — involved exposing us to the stories of Soviet dissidents, people who, in various ways, stood up to a brutally repressive regime for their right to believe and to say their own, rather than the regime’s truth. The circumstances of a free and democratic society such as Canada are hardly comparable to those of the Soviet Union, but the moral imperative to live the truth as one sees it is no less pressing in this more benign setting.

As to the latter, I have been heavily influenced by Lord Acton’s liberalism, and, in particular, his admiration for “[t]he true apostles of toleration” — “not those who sought protection for their own beliefs, or who had none to protect; but men to whom, irrespective of their cause, it was a political, a moral, and a theological dogma, a question of conscience involving both religion and policy”. Hence my advocacy for the freedom of conscience and expression of those with whom I disagree; but one can still, I trust, be a defender of toleration while claiming its benefits for oneself. Lord Acton summarized the role of freedom of conscience in modern history thus:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities.

It is my most deeply and conscientiously held belief that I must defend “the ground gained by the individual”, and the individual’s prerogative to maintain his or her independent character. I must resist if I can, and certainly lend no support to the attempts of “states, or nations, or majorities” — including a majority of the Benchers of the Law Society — to claim for themselves the “sublime prerogative” of knowing good and evil, and cast those subject to their jurisdiction all of the same type.

In addition to this overall outlook, I believe that my professional position as a scholar means that I must resist any attempt to make me adhere to or promote specific values chosen by an external authority. Academic freedom — which I regard not only as an entitlement but also as a responsibility — is a right, and arguably a duty, to pursue truth, however uncomfortable or unpleasant it might be to authorities and others. This pursuit, in my opinion, is incompatible with an undertaking to promote specific values. If my research leads me to conclusions that I or others regard as incompatible with or even opposed to a given value, so much the worse for the value in question.

I would add that, at a high level of generality, I find the values to which the Statement of Principles requirement refers attractive. However, my understanding of these general values is quite different from that which animates the Statement of Principles requirement. I believe in equality before the law, and reject the value of an equality of outcomes. I believe that diversity is primarily desirable if it embraces a plurality of views and perspectives on human flourishing, and not only of demographic backgrounds. Similarly, I believe that inclusion must extend to those who think, and not only those who look, unlike the majority. As a result, expressing support for these values, at the command of the Law Society, would risk communicating adherence to beliefs that I do not hold, and would thus force me to express statements I would not otherwise express.

Concluding observations

As explained above, I refuse to comply with the Statement of Principles requirement. I regard it as incompatible with my rights and duties as a free person, my professional responsibilities as a scholar, and, above all, my conscience.

If the requirement that I hold and promote values chosen by the Law Society is not repealed or invalidated, I will cease being a member of the legal profession in Ontario. This is not an outcome I desire — I would not have paid substantial fees for years for the privilege of this membership which is not necessary for my academic position and from which I derive no financial gain if I did not value the connection with the profession. However, I simply cannot remain a member of the legal profession in Ontario if to do so would violate some of my most deeply held conscientious beliefs.

We’ll see what happens with this. In any case, I am very grateful to Professor Alford and Mr. Klippenstein, as well as Asher Honickman who is litigating the case, and the CCF for fighting the good fight. And don’t forget that, in parallel, there is another front on which this fight can be fought ― the upcoming election for benchers of the Law Society. Vote, and throw the bums who imposed the “statement of principles” requirement out!