Submission to LSUC [now the LSO]
Comments on the
Report of the Retention of Women in Private Practice
Working Group
April 17, 2008
To: Josée Bouchard
Equity Advisor
The Law Society of Upper Canada
Osgoode Hall
130 Queen Street West
Toronto, Ontario
M5H 2N6
Tel: 416-947-3984
Fax: 416-947-3983
E-mail: lawconsultations@lsuc.on.ca
From: Rita Anne Hartmann, B.A., LL.B.
Walton, Brigham & Kelly
301 Donlands Avenue
Toronto, Ontario
M4J 3R8
Tel. 416-425-4300
Fax: 416-425-4310
E-mail: ritaannehartmann@gmail.com
Introduction:
The Report is well done, well thought out, and a tribute to the professionalism of the people who assembled it.
My comments will focus mainly on point 2 of the original mandate of the Retention of Women in Private Practice Working Group, which was to determine the role of the Law Society in addressing the issue of retention of women in private practice.
While the Report makes many excellent practical recommendations for law firms of all sizes, its few suggestions concerning the Law Society itself fall short of the serious change in corporate culture that needs to occur in that organization if equity is to become more than a useful political slogan. The brilliance of some of the other recommendations means that they could easily be used as a smokescreen for not dealing with a large part of the problem for women lawyers, which is the Law Society itself. It could be said that the fox is in with the chickens, but the farmer is off in town buying more chicken food.
Madame Justice Bertha Wilson’s 1993 report Touchstones for Change: Equality, Diversity and Accountability, identified law societies as important agents of change and as organizations that could and should exhibit leadership on gender issues. I believe that with the implementation of a few further recommendations, the Law Society of Upper Canada could easily become a world leader in this regard.
My background:
I was called to the Bar of the Province of Ontario in 1975. I have had a diverse career in government, politics (former adviser to a provincial cabinet minister), charitable work, running my own business, and working in a small private law practice in the east end of Toronto. Along the way, I also had several children and grandchildren, and maintained cordial relationships with large and diverse groups of relatives and friends. I have an in depth first hand knowledge of the issues facing women in taking on non-traditional roles. For the most part, I have found women of talent to be welcomed at every level in the legal profession. Sad to say, in my experience the largest exception to this rule has been the corporate culture of the Law Society of Upper Canada.
The problem:
As equality seeking groups have all experienced, the least blatant forms of discrimination are often the most effective. As a matter of fact, as with spouse abuse, inequities can be the most damaging when they emanate from those who put on a veneer of civility to the outside world and thereby subtly isolate the victims from help. While the Law Society has an excellent reputation as an employer, its oversight role on the legal profession leaves much to be desired in the realms of fairness, sensitivity and due process. Because the Law Society is investigator, judge, jury, and executioner, there are few who are willing to speak out when they encounter behaviour on the part of its staff that does not live up to its publicly espoused ideals and rules. In my experience and that of many others with whom I have spoken, fairness in the Law Society’s dealings is an exception rather than the rule.
Here are just a few examples of the out picturing of the Law Society’s corporate culture:
These examples are not meant to reflect badly on the average hard working and well meaning Law Society staffer or Bencher. In particular, the staff in Members Services and By-Law Enforcement have been extremely professional and hard working and are a pleasant exception to the behaviours exhibited elsewhere in the hallowed halls of Osgoode.
As the Report on the Retention of Women in Private Practice Working Group makes clear, women lawyers in large firms and small firms inhabit different worlds. They are also often treated differently by personnel within the Law Society, so that the inequities faced by women lawyers in general are compounded for women lawyers in small practices. Large firms have administrative bureaucracies to deal with inquiries from the Law Society. Small firms often have one over-worked woman lawyer and one over-worked secretary who daily struggle to handle a myriad of details and give a diversity of ordinary clients excellent service under trying conditions. Often women lawyers in small firms suffer from burnout, depression, and an unequal division of family responsibilities. When a letter comes in from the Law Society, it does not automatically go to the top of the priorities list. Instead of Law Society investigative personnel assuming that there might be a problem and phoning and offering to meet the lawyer at the firm and resolve the problem, or perhaps call in a mediator, they tend to take a “Gotcha” attitude and then go after the lawyer for failure to respond in whatever time frame they announce is suitable – rather like old style police officers with traffic ticket quotas to fill. Women lawyers in small firms are treated as if they have all the administrative resources of women lawyers in large firms. This is also a problem for men in small firms, but given their family responsibilities it doubly affects women lawyers. This has nothing to do with protecting the public, and a lot to do with ingrained patriarchal attitudes about victimizing people perceived as less powerful or lower on the social totem pole.
Conclusion:
When I entered the legal profession, I felt that most lawyers and the Law Society as a whole genuinely welcomed women with talent and a good work ethic into their ranks. Now I feel that the more lip service the Law Society gives to retaining women in the profession, the more subtle ways some of its employees find of undermining women lawyers and pressuring them to leave the profession early.
Based on past experience, I fully expect and anticipate, though I do not relish, retaliation by some Law Society staffers against both myself and my family for speaking out about these realities. [Emphasis added.]
Recommendations:
1. The Law Society should show leadership from the top down by doing a complete “equity audit” on every level of its organization, building and policies. This equity audit should in particular focus on the differential impact that supposedly neutral policies and procedures can have on disadvantaged groups. In depth attention should be paid to investigations procedures and personnel and the effect they have particularly on women lawyers in small firms. The rules for continuing education and for coming back into the profession after an absence doing other activities should also be closely scrutinized. The detailed results of the equity audit should be made public so that these results can help raise the consciousness of other regulatory bodies across North America.
2. Members of the Law Society’s complaints personnel, both investigators and counsel, should participate in sensitivity training with regard to gender, age and racial issues.
3. The Law Society’s investigative personnel should be mandated to follow the same rules of professional behaviour as employees of normal law firms.
4. Instead of a powerless harassment and discrimination counsel, the Law Society should appoint an Ombudsperson with real power to intervene when a licensee or a licensee’s family is being unfairly treated or endangered by Law Society staff.
5. The Law Society should institute a system of feedback, anonymous if necessary, concerning all its dealings with licensees, especially those in equality seeking groups, so that it will have “early warning” of both logistical and equity-related problems.
6. Until there is a significant change in corporate culture, a percentage of the Benchers’ seats should be allocated to members of different categories of equality-seeking groups.
With these changes and the ones submitted by the Working Group, I believe the Law Society could become a world role model for truly promoting equity in a regulated profession.
Rita Anne Hartmann, B.A., J.D.
Report of the Retention of Women in Private Practice
Working Group
April 17, 2008
To: Josée Bouchard
Equity Advisor
The Law Society of Upper Canada
Osgoode Hall
130 Queen Street West
Toronto, Ontario
M5H 2N6
Tel: 416-947-3984
Fax: 416-947-3983
E-mail: lawconsultations@lsuc.on.ca
From: Rita Anne Hartmann, B.A., LL.B.
Walton, Brigham & Kelly
301 Donlands Avenue
Toronto, Ontario
M4J 3R8
Tel. 416-425-4300
Fax: 416-425-4310
E-mail: ritaannehartmann@gmail.com
Introduction:
The Report is well done, well thought out, and a tribute to the professionalism of the people who assembled it.
My comments will focus mainly on point 2 of the original mandate of the Retention of Women in Private Practice Working Group, which was to determine the role of the Law Society in addressing the issue of retention of women in private practice.
While the Report makes many excellent practical recommendations for law firms of all sizes, its few suggestions concerning the Law Society itself fall short of the serious change in corporate culture that needs to occur in that organization if equity is to become more than a useful political slogan. The brilliance of some of the other recommendations means that they could easily be used as a smokescreen for not dealing with a large part of the problem for women lawyers, which is the Law Society itself. It could be said that the fox is in with the chickens, but the farmer is off in town buying more chicken food.
Madame Justice Bertha Wilson’s 1993 report Touchstones for Change: Equality, Diversity and Accountability, identified law societies as important agents of change and as organizations that could and should exhibit leadership on gender issues. I believe that with the implementation of a few further recommendations, the Law Society of Upper Canada could easily become a world leader in this regard.
My background:
I was called to the Bar of the Province of Ontario in 1975. I have had a diverse career in government, politics (former adviser to a provincial cabinet minister), charitable work, running my own business, and working in a small private law practice in the east end of Toronto. Along the way, I also had several children and grandchildren, and maintained cordial relationships with large and diverse groups of relatives and friends. I have an in depth first hand knowledge of the issues facing women in taking on non-traditional roles. For the most part, I have found women of talent to be welcomed at every level in the legal profession. Sad to say, in my experience the largest exception to this rule has been the corporate culture of the Law Society of Upper Canada.
The problem:
As equality seeking groups have all experienced, the least blatant forms of discrimination are often the most effective. As a matter of fact, as with spouse abuse, inequities can be the most damaging when they emanate from those who put on a veneer of civility to the outside world and thereby subtly isolate the victims from help. While the Law Society has an excellent reputation as an employer, its oversight role on the legal profession leaves much to be desired in the realms of fairness, sensitivity and due process. Because the Law Society is investigator, judge, jury, and executioner, there are few who are willing to speak out when they encounter behaviour on the part of its staff that does not live up to its publicly espoused ideals and rules. In my experience and that of many others with whom I have spoken, fairness in the Law Society’s dealings is an exception rather than the rule.
Here are just a few examples of the out picturing of the Law Society’s corporate culture:
- Despite millions of dollars spent on renovating Osgoode Hall, women lawyers visiting the Members Services desk or perhaps helping with the Lawyers Feed the Hungry program generally walk down a back staircase and through narrow basement alleyways to get to a fifties’ style bathroom, while the men have a modern bathroom across from the Members Services desk in a large, posh, well-lit hallway.
- Formal invitations for a forthcoming reception to honour paralegals were individually mailed on nice white cardstock paper emanating from Treasurer Gavin McKenzie. Invitations to discussions about the Retention of Women report were emailed, and there is no indication that Mr. McKenzie will be in attendance.
- Precedent magazine’s current issue tells the story of Naomi Loewith, who got a Harvard law degree and clerked with Justice Morris Fish at the Supreme Court of Canada. The National Committee on Accreditation insisted that she take four courses, which she completed during her clerkship. The Law Society of Upper Canada, however, would not let her Supreme Court work count toward her articles because she had not completed her educational equivalency beforehand. She then had to article for the regular amount of time minus three weeks’ credit given to her for her 12-month clerkship. The Precedent magazine article gives a similar story about a male lawyer, but makes no point about the differential impact on a high achieving woman in her twenties of making her put in an extra year of her life before being grudgingly allowed to work at her chosen profession.
- From time to time, presumably by clerical error, some lawyers have had their home addresses instead of their business addresses posted on the Law Society website or had their home information given out by staff members to other lawyers. In one case a woman lawyer, after refusing to have lunch with a well-known male lawyer and author, found her home address from Law Society confidential records printed in the man’s next book along with much misinformation and the “helpful” tidbit that she lived alone with her children. Because of the differential impact that such callousness by Law Society staff can have on women with vicious ex-spouses or business competitors, this problem of unauthorized dissemination of personal information should have been rectified years ago. The fact that it has not been attests to the low priority put on women’s safety in the corporate culture of the Law Society of Upper Canada. The good news is that women can practise law; the bad news is that they risk their own lives and those of their children by doing so.
- In a recent misadventure with the discipline arm of the Law Society while I was on sabbatical running a poverty health clinic out west, I was refused an adjournment by a male lawyer for being “combative” (i.e., refusing to consent to his purported “statement of facts” that was full of innuendo, misrepresentations and outright mistruths), dragged across a continent away from two special needs grandchildren on short notice requiring an expensive flight, deprived of any right to good faith reliance on counsel, and subjected to inane and demeaning questions by a female investigator about how many times I did clerical tasks like bank deposits and note taking while working in a law firm three years earlier.
These examples are not meant to reflect badly on the average hard working and well meaning Law Society staffer or Bencher. In particular, the staff in Members Services and By-Law Enforcement have been extremely professional and hard working and are a pleasant exception to the behaviours exhibited elsewhere in the hallowed halls of Osgoode.
As the Report on the Retention of Women in Private Practice Working Group makes clear, women lawyers in large firms and small firms inhabit different worlds. They are also often treated differently by personnel within the Law Society, so that the inequities faced by women lawyers in general are compounded for women lawyers in small practices. Large firms have administrative bureaucracies to deal with inquiries from the Law Society. Small firms often have one over-worked woman lawyer and one over-worked secretary who daily struggle to handle a myriad of details and give a diversity of ordinary clients excellent service under trying conditions. Often women lawyers in small firms suffer from burnout, depression, and an unequal division of family responsibilities. When a letter comes in from the Law Society, it does not automatically go to the top of the priorities list. Instead of Law Society investigative personnel assuming that there might be a problem and phoning and offering to meet the lawyer at the firm and resolve the problem, or perhaps call in a mediator, they tend to take a “Gotcha” attitude and then go after the lawyer for failure to respond in whatever time frame they announce is suitable – rather like old style police officers with traffic ticket quotas to fill. Women lawyers in small firms are treated as if they have all the administrative resources of women lawyers in large firms. This is also a problem for men in small firms, but given their family responsibilities it doubly affects women lawyers. This has nothing to do with protecting the public, and a lot to do with ingrained patriarchal attitudes about victimizing people perceived as less powerful or lower on the social totem pole.
Conclusion:
When I entered the legal profession, I felt that most lawyers and the Law Society as a whole genuinely welcomed women with talent and a good work ethic into their ranks. Now I feel that the more lip service the Law Society gives to retaining women in the profession, the more subtle ways some of its employees find of undermining women lawyers and pressuring them to leave the profession early.
Based on past experience, I fully expect and anticipate, though I do not relish, retaliation by some Law Society staffers against both myself and my family for speaking out about these realities. [Emphasis added.]
Recommendations:
1. The Law Society should show leadership from the top down by doing a complete “equity audit” on every level of its organization, building and policies. This equity audit should in particular focus on the differential impact that supposedly neutral policies and procedures can have on disadvantaged groups. In depth attention should be paid to investigations procedures and personnel and the effect they have particularly on women lawyers in small firms. The rules for continuing education and for coming back into the profession after an absence doing other activities should also be closely scrutinized. The detailed results of the equity audit should be made public so that these results can help raise the consciousness of other regulatory bodies across North America.
2. Members of the Law Society’s complaints personnel, both investigators and counsel, should participate in sensitivity training with regard to gender, age and racial issues.
3. The Law Society’s investigative personnel should be mandated to follow the same rules of professional behaviour as employees of normal law firms.
4. Instead of a powerless harassment and discrimination counsel, the Law Society should appoint an Ombudsperson with real power to intervene when a licensee or a licensee’s family is being unfairly treated or endangered by Law Society staff.
5. The Law Society should institute a system of feedback, anonymous if necessary, concerning all its dealings with licensees, especially those in equality seeking groups, so that it will have “early warning” of both logistical and equity-related problems.
6. Until there is a significant change in corporate culture, a percentage of the Benchers’ seats should be allocated to members of different categories of equality-seeking groups.
With these changes and the ones submitted by the Working Group, I believe the Law Society could become a world role model for truly promoting equity in a regulated profession.
Rita Anne Hartmann, B.A., J.D.
