Arthur Cockfield is a professor at Queen's University faculty of law. He is the author of Introduction to Legal Ethics
In a head-scratching move this past week, the Law Society of Upper Canada (which has recently purged the "Upper Canada" from its name) sent out a bizarre e-mail telling all Ontario lawyers such as myself that we have a new mandatory requirement to write a "Statement of Principles."
The chilling Orwellian language bears repeating: "You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report."
Forcing lawyers to subscribe to a particular worldview for regulatory purposes is an unacceptable intrusion into a lawyer's liberty and promotes significant harm to the public.
First, the new mandatory obligation is technically "illegal" because, under the Law Society's own rules of professional conduct, which I edited into a book, there is no such obligation to promote the values of equality, diversity and "inclusion generally" (whatever that means) – to pretty much every person who crosses a lawyer's path.
All licensees, including paralegals, must respect Ontario human-rights law and must not engage in discriminatory practices, but there is no positive obligation to do anything other than obey the law and recognize diversity. The public will understandably be confused by the Law Society's new attempt to ferret out lawyers who do not engage in "right thinking," bringing the legal profession into disrepute.
Second, the new rule will lead to widespread dishonesty by lawyers who, for instance, may be motivated by religious belief to engage in exclusionary practices. Indeed, lawyers practising different faiths tell me that (shockingly) only men are permitted to lead most conventional religious services – should we hound these folks out of the profession?
To avoid sanction by the Law Society's thought police, many lawyers will simply lie when they write up their new moral code, er, Statement of Principles. Members of the public will quickly realize the profession is filled with liars and the whole thing is a sham, bringing further disrepute to the legal profession.
Third, the Law Society's well-meaning but boneheaded dictate harms the ability of a lawyer in a liberal democracy to protect unpopular thinking. Consider a hypothetical person who is charged with a criminal offence for publicly calling for sharia laws. Due to widespread Islamophobia, such a person may be subjected to unfair – or worse – treatment by the police.
In a just society, this accused individual needs to be able to trust one man or woman, one person who is completely on his side against the vast resources of the state. We call this person a lawyer. Now, how can the accused – who was simply expressing himself – truly trust that he can find this independent-minded lawyer to provide him with objective legal advice? All he knows is that every single lawyer in Ontario has written a personal statement conforming to a worldview with which he profoundly disagrees.
One last point. In almost every legal ethics class I teach, I discuss the values of diversity and equality because I personally think these values are important. But the law in a free society should never prescribe a statement of beliefs and intentions for workers. Similarly, even though I believe in those values myself, I would never be so arrogant as to demand that my students turn in an essay providing arguments why I am right. True diversity includes diversity of opinion; protecting this sacred value continues to promote equality among Canadians, and should not be lightly abandoned.
As for me, I will not comply with this new requirement and look forward to a Law Society investigation and full hearing into my alleged unethical and unprofessional behaviour.