LSO will not publish index on equity, diversity, and inclusion in the legal profession

On Tuesday’s Convocation, the Law Society of Ontario benchers voted not to release the 2019 inclusion index that collected data regarding the progress towards equity, diversity, and inclusion in the legal profession.

The LSO’s Equity and Indigenous Affairs Committee (EIAC) committee chair, Dianne Corbiere, brought a motion that the 2019 inclusion index should not be released because it was no longer an effective means to achieve the LSO’s equity goals, given the passage of time due to the pandemic.

The EIAC issued a report that proposed the continued development of how data about EDI in legal workplaces is collected and published. In addition, the report suggested developing an inclusion index for legal workplaces with 25 or more licensees.

Corbiere said the committee’s recommendation followed a peer review by a panel of three independent experts asked to help determine the appropriate use and application of the data in the 2019 inclusion index, developed from the 2018 annual report filings submitted by Ontario lawyers and paralegals.

The peer-review panels supported the concept of data collection and publication to progress toward EDI in the legal profession. However, Corbiere said the panel found that the 2019 inclusion index was not transparent.

In December 2016, Convocation approved the final report of the Challenges Working Group with 13 recommendations, including measuring inclusion in legal workplaces.

 “While the goal of the index is to provide transparency and valuable information, the data collection from individual participants was founded on principles that the confidentiality of the participants’ answers would be strictly maintained, and that provision of the data would be completely voluntary. This tension between striving for transparency and respecting confidentiality led to issues with the data and consequently the index itself,” Corbiere said.

While the majority of the EIAC accepted the peer review panel’s recommendation and committed to developing a new protocol to collect and publish data on EDI, Corbiere said that the minority believed that the LSO should discontinue the work of the inclusion index in its entirety and not undertake further work on collecting and publicizing EDI data.

“The minority position assumes that a new data protocol will be expensive and time-consuming. That is pure speculation at this point. This is not the time to abandon recommendation six [the inclusion index] of the challenges report without hearing from the professions and considering what data protocols could better serve the goal of measuring progress among legal workplaces in addressing equity, diversity, and inclusion.

“It is simply wrong to abandon this project because the first iteration did not work out.”

The debate on the inclusion index began at Convocation between bencher Julian Falconer and Murray Klippenstein. Falconer raised concerns about Klippenstein’s lawsuit against the LSO regarding its equity initiatives, particularly the inclusion index, challenges report and strategic communications (STRATCOM) work that identified challenges faced by racialized lawyers and paralegals, challenges that increased the risk of regulatory complaints and preventative measures. Accordingly, he asked Klippenstein to recuse himself from deliberations and decision-making concerning the inclusion index and equity initiatives.

“The essence of the proceeding is to get access to documents based on his allegations that the work is invalid and compromised. In the circumstances, I am pleading with my colleague to recognize that he’s put himself in an irreconcilable conflict as a governor while at the same time a litigant in the Superior Court of Ontario,” Falconer said.

Falconer said that the nature of his lawsuit is to criticize and attack the work and legal pleadings of the EIAC.

“How does an individual who has chosen to take this route at the same time vote and participate in proceedings about that very subject matter as a governor on the Law Society of Ontario? If we as members of the law society can’t recognize a clear and overwhelming conflict of interest, how do we expect the 57,000 lawyers we regulate to recognize it?” he asked.

Bencher Klippenstein declined Falconer’s invitation that he recuses himself.

Some benchers raised concerns about the wasted expenses that went into the first inclusion index and asked that the EIAC publicize the costs so the LSO can be held accountable and be transparent to members regarding the money spent.

Several benchers also opposed EIAC’s recommendation to develop an inclusion index for legal workplaces of 25 or more licensees. Bencher Klippenstein said Convocation should never have authorized the index in 2016.

“That information as compiled in this inclusion index was going to publicly rank over 100 law firms in Ontario in a simple list from best to worst, whether those firms wanted it or not, on some very political grounds. This would have had a devastating public impact on scores of Ontario law firms, except that none of this was justified, and that was clear from the start.”

Bencher Sam Goldstein said there is nothing inclusive about a race audit that divides the profession into people who are white and not white.

“What is problematic today is that we are less able to see the antisemitism of the progressive humanist left...They come with smiley faces promising utopian visions of the world with their social justice. They’re the people who say, well, these minor issues can be solved through further statistics and social engineering of society.”

Bencher Gary Graham asked why the EIAC issued a press release advocating for the motion without revealing the problems with the initial inclusion index. “We are, as the law society, expressing an intention to embark on a naming and shaming expedition, which is in need of pressuring firms to discriminate against some groups in favour of other groups, and I cannot support that.”

Bencher Michael Lesage said that while he likes the idea of data collection, he objects to the public ranking of large law firms because it presents a conflict of interest.

“Many large corporations will use such a ranking by the law society in their selection of legal counsel. So, what the law society would in effect be transferring business or potential business from small and midsize firms including many minority licensees to the biggest firms in the province.”

Bencher Julian Falconer said the StopSOP benchers have voted against every LSO equity measure since their tenure. “Not once in the three years that they have been benchers in this Convocation have they come forward with one suggestion positive on how to enhance equity or accountability for equity. Every single suggestion made has been about dismantling...This isn’t about advancing the profession, this is about blocking the ability of people to progress, and I, for one, will continue to protect equity at every stage.”

Forty-four benchers voted in favour of the motion to not publicize the index, with two opposed and seven abstentions.

Bencher John Fagan brought a further motion that the LSO should not work on any inclusion index or a protocol for data collection and publication of data on EDI in legal workplaces until Convocation has considered whether any inclusion index or protocol should be the subject of any work, and if so, how to proceed. However, Bencher Sidney Troister successfully moved to table the motion with 27 in favour and 21 opposed.