On June 15, 2016 my husband and I attended a session hosted by the Ontario Bar Association’s Women Lawyers Forum and the Canadian Corporate Counsel Association at Microsoft Canada’s headquarters in Mississauga, called “Gender at Work: Engaging Men as Agents of Change”. The chairs of the program were Sabrina Bandali (Bennett Jones LLP), Nadine Letson (Microsoft Canada), and Amee Sandhu (SNC-Lavalin). The panelists were Marni Dicker (Infrastructure Ontario), Julie Petrini (Microsoft Corporation), and Rich Sauer (Microsoft Corporation).
First, I must say it was refreshing to have just as many men in the room as women when discussing gender imbalance in the workplace. Unfortunately many of the events hosted by women lawyer groups and associations dealing with advancing women tend to attract only women. I think we need to make a real effort to let men know they are invited and encouraged to attend these events as well. Men have a key role in correcting gender imbalance in the workplace. I've seen the difference it makes when men sponsor, mentor, and champion women lawyers.
The discussion at the event began with the acknowledgement of the unconscious biases that we all have. We learned that Microsoft uses a theatre troupe to help their employees understand their unconscious biases. I think this would be great for law firms as well. Other topics included maternity/paternity/parental leaves, the importance of mentors and sponsors, getting men involved in diversity initiatives (ask them!) and how to deal with workplace harassment and discrimination, to name a few.
Clearly everyone in that room knew of the importance of promoting gender equality in law. There is no dispute that there is a business case for diversity and inclusion. Now, how do we get those who think it is “not their problem” to enter the discussion?
Firms and corporations over the last decade or so have used “coaching” for women as one way to try and correct the gender imbalance in law. As a woman lawyer, I’ve been coached on just about everything under the sun. I’ve been coached on how to transition back to work from maternity leave; I’ve been coached on how to business develop and network; and I’ve been coached on how to negotiate at a table with men (Sit up! Lean in! Speak up!). And while I truly appreciate the effort and support, all of this coaching is futile if the head of your department chooses not to return your files to you when you return from mat leave. Or, if the ‘rainmakers’ invite the male associates up to their Muskoka cottages with the clients for networking, but not the female associates. Or, if the senior partners don’t invite you to the negotiating table in the first place. When do these heads of departments, rainmakers, and senior partners get their coaching? They may not even be aware of the impact that their actions can have (both positive and negative) on promoting women in law.
I think it is important to continue to have these events, and we need to invite and encourage everyone to participant in the discussion. Congrats to the OBA Women Lawyers Forum and the CCCA on a great program.
On May 26, 2016, Convocation approved amendments to the Law Society of Upper Canada’s Rules of Professional Conduct, including amendments to the rule governing our duty to report another lawyer. I have previously written about this professional obligation on my blog here.
The recent amendments will hopefully bring some clarification to when our duty will arise, but may also expand that positive duty to encompass reporting behaviour or conduct that is far more prevalent than under the previous rule.
In October 2014 the Rules were amended to reflect the Federation of Law Societies of Canada’s (FLSC) Model Code. Rule 7.1-3 read as follows:
Duty to Report Misconduct (October 2014)
7.1-3 A lawyer shall report to the Law Society, unless to do so would be unlawful or would involve a breach of solicitor-client privilege,
(a) the misappropriation or misapplication of trust monies;
(b) the abandonment of a law or legal services practice;
(c) participation in serious criminal activity related to a licensee’s practice;
(d) the mental instability of a licensee of such a serious nature that the licensee’s clients are likely to be materially prejudiced; and
(e) [FLSC - not in use]
(f) any other situation where a licensee’s clients are likely to be severely prejudiced.
Convocation voted to change the wording of this rule to reflect amendments the FLSC recently made to the Model Code in March 2016. Section 7.1-3(e) will now read:
Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer shall report to the Law Society conduct that raises a substantial question about the lawyer’s capacity to provide professional services.
I had questioned in my previous post the earlier wording which required us to report another lawyer if the “mental instability” of that lawyer was of such a “serious nature” as to “materially prejudice” a client’s interest. I think the new amendment will provide some clarity by removing the words “mental instability” and including the more widely recognized term of “capacity”. If other lawyers are aware that a lawyer does not have the requisite capacity to provide professional services, or their conduct raises a substantial question as to their capacity, lawyers should be under a positive duty to report.
The recent amendments also revised the wording of Rule 7.1-3 (d) which now states:
Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer shall report to the Law Society conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer.
When the LSUC implemented the Model Code in October 2014, it chose not to use this subsection of the Rule. The most recent amendments have now added it. Arguably this addition broadens our duty to report another lawyer for misconduct.
Previously, besides situations of ‘mental instability’, we were only under a positive obligation to report misappropriation of trust funds, an abandoned practice, criminal activity and the catch-all situation where a client was likely to be severely prejudiced – occurrences that are rather rare. But how many times have you seriously questioned the honesty, trustworthiness, or competency of another lawyer? Unfortunately, if you are anything like me, it’s been a few times during my career. With this new sub-rule we may not have any choice but to report these lawyers.
Am I saying you should report a fellow lawyer for not being completely truthful about how many trials they’ve won? No, not likely. But I think, as with all of the rules, one should look at the circumstances as a whole, use your judgement, and remind yourself of the high standards of the legal profession.
While reporting a fellow lawyer may result in serious ramifications for that lawyer (and potentially for the reporting lawyer), not reporting could result in even more serious consequences for that lawyer’s clients if the conduct prejudices their case and legal rights. Burying our heads in the sand and ignoring the misconduct of a fellow lawyer (including their lack of honesty, trustworthiness and competency) could result in worse implications for that lawyer, the public, and the profession as a whole.
Understandably, some law societies and legal ethics academics expressed concerns about the language that described “mental instability” as “misconduct”. With that, the amendments remove the word “misconduct” from the title of the rule.
Amendments were also made to the commentary associated with sub-rule 7.1-3, including clarifying that when you report anther lawyer it must be “made without malice or ulterior motive”. The commentary also now uses language that is less discriminatory for describing when we should be encouraging other lawyers to seek professional help: i.e. removing “lawyers who suffer from such problems” to “lawyers who face such challenges”.
Other rules that were amended include Rule 3.4-27 (Transactions with Clients), Rule 3.2-1 (Quality of Service) and Rules 7.8-1 &7.8-2 (Errors and omissions). The full report on the amendments can be found here.
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of FLEX LEGAL, a network of freelance lawyers.