I attend a lot of events for women lawyers hosted by a variety of law associations and organizations. It is important that we network, support, and learn from each other. I’ve noticed an underlying theme at some programs that makes me uncomfortable. There is an oft-repeated assumption that we, as women lawyers (particularly those of us who are mothers), have more obligations at home or outside the office (I will call them “life obligations”) than our male colleagues. I have heard: “Well, this is a woman’s event so I would be remiss to not speak about our extra challenges with home life”; “As women we have so many more responsibilities than our male partners”; or, “Of course we must talk about balancing our home obligations with work as women lawyers”.
So you might be thinking “Why does this bother you, it’s the truth, isn’t it?” Well it does bother me and here’s why: First, is it true? Yes, I’ve seen the studies that say women are still doing more of the unpaid work in the home than men, even when both partners have full time jobs. I won’t argue with that. But, these studies are not saying that all women do more work at home than men. There are still a good number of women who are part of an equal partnership with respect to child rearing and household chores or who may even do less than their partner or spouse. More importantly, if this assumption (that women lawyers have more life obligations) is true, should it be? Here’s what bothers me the most: it appears that there is a general acceptance that because we are women we will always have more life obligations than our male counterparts. This makes no sense to me. If we simply accept that these life obligations are, and always will be, a woman’s responsibility, how can we ever expect that to change? How do we ever expect to be truly equal in the legal profession when everyone assumes that we do more at home? There will never be gender equality in the workplace without gender equality at home. There will never be gender equality at home if we keep reinforcing the belief that women have more responsibilities outside the office. Speaking from personal experience, after the birth of my first child I was more than ready and willing to get back to work after my maternity leave. I remember trying to join a sub-group in my practice area thinking it could help expand potential business development opportunities. However, I was told by a senior partner that perhaps joining this group was not a good idea at that time, after all, I had just had a kid and life was going to be busy enough. Perhaps this was said with the best of intentions, but this partner did not even consider the fact that I had a supportive husband, had hired a superb caregiver, and had dedicated time to focus on my career. All of this did not matter, as they simply assumed that as a mother I now had more life obligations which would detract from my work obligations. I doubt the same assumption was made of my fellow male associate who also just had a child with his wife. By placing this assumption front and center at women’s programs, it gives licence to others to make decisions for us under the guise of lessening the “burden” on women lawyers. Also, some may feel that there is a shaming factor in place for women lawyers who choose not to take on extra life obligations. It’s almost as if they are not living up to the expectation of what they should be: the struggling woman lawyer trying to do it all. On the flip side, think about how this false belief affects male lawyers or our male partners and spouses. If the message is that women are responsible for obligations at home or are better at life ‘stuff’, or that men are ill-equipped to manage a household the way a woman can, why would men ever step up and do more? Or for those men who do step up and are just as involved at home as their spouses or partners, it may be incorrectly assumed that they do not need (or want) to be home for dinner or bedtime because they have a spouse who will be. We are never going to level the playing field for women in law by teaching women how to balance our life obligations with our work obligations. Law firms are going to level the playing field by allowing our male counterparts to take significant paternity or parental leave, supporting them when they take an active role in their home life, and encouraging them to be comfortable with these choices. Women do not have a monopoly on life obligations. I know some may not agree with me and I would love to hear your opinions. I also know I am writing this through a very specific and privileged lens. However, I just cannot go to another event aimed at keeping women in the legal profession and have it start with this (false) premise. Instead of helping us, I believe it is hurting us even more.
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Last month I attended the program “Through the Door and at the Table: Women and Racial Diversity”, part of the Equity Education Series hosted by the Law Society of Upper Canada and the Women’s Law Association of Ontario. This free public event was advertised as a “panel discussion featuring diverse women in a variety of legal careers, including private practice, government, in-house and the judiciary. The panel discussion will touch on issues of gender, race, diversity and inclusion and speak to the ideas of access and power in the legal profession”. How could you not want to go? The event was well attended and had several impressive speakers:
Just a few of the interesting insights provided by the panelists are summarized below:
Overall it was an informative evening, followed by a great cocktail hour where you could “network” or “connect” with others. I found the panelists differing views on networking to be interesting. I do believe that “networking” or “connecting” with others is such an important concept for career advancement. As highlighted by the panel, networking is not just about getting new business in the door. It helps you find that new career position (like Marsha), it helps you get elected as Bencher with the LSUC (like Isfahan), it helps you get appointed to the bench (like Justice Bacchus), etc. If you are interested in learning more about networking and connecting with others in our profession, and how woman may or may not do it differently, please note that the Women Lawyers Forum of the OBA will be hosting an event on December 1st on this very topic. Keep an eye out for an advertisement of the event and more details, which will be announced soon! Last week I attended the OBA Women Lawyers Forum's latest event in its “Pathways to Power” series, this one was on "General and In-House Counsel". The event was also co-hosted by the Ontario chapter of the Canadian Corporate Counsel Association. This was the fourth in the WLF’s series, the previous ones being Women in Politics; Women on Board; and Women on the Bench.
The speakers were Marlene Costa of the Ontario Securities Commission; Susan Kennedy of Ornge; Linda Lam of Advanced Micro Devices; and Aliya Ramji of Figure 1. The program was entertainingly chaired by Melissa Babel of KPMG Law LLP and Jana Pauk of Dentons. Some highlights of the questions and answers at the event:
These are just a few of the great insights this panel offered. I won’t give all of their tips and tricks away; you will just have to attend the next session. Pathways to Power: Female Founders will be held in Spring 2017. [1] Shameless plug for my business here: I help lawyers and law firms with drafting these very important business development and legal content marketing pieces. Outsource your legal newsletter drafting so you can keep working on your billable work! [2] Shameless plug number two: I am also the co-founder of a legal outsourcing business. Flex Legal is a network of experienced (10+ years) freelance lawyers who assist lawyers, firms and in-house legal departments on a contract, project or freelance basis. For the first time since my call to the Bar more than 10 years ago, I decided to take up the invitation to attend the “Annual Opening of the Courts Ceremony” this week.
So, what is this ceremony and why do we do it? The Courts don’t actually close, so why do we have to open them? In a 2012 blog post, Dean Lorne Sossin of Osgoode observed that: “While Courts once closed down during the summer, this is a relic of a more civilized past. While vacations still mean a somewhat slower pace and greater challenges in scheduling matters, the Courts are open year round, and a trial in September looks pretty much like a trial in August. Unlike academic years, it is not as if one group of lawyers or judges graduate one year or start the next. Vacancies are filled throughout the year and deciding to “open” the Courts in September is pretty much an arbitrary gesture.” Arbitrary or not, the ceremony was steeped in tradition and now acts as a way for the judiciary to reflect on the year that has passed and advise the Bar on priorities for the upcoming year. The ceremony was held in the large Courtroom 6-1 at 361 University Ave and guests passed through two rows of police officers (including an RCMP officer in ceremonial uniform) standing guard at the door. Then there were a lot of speeches about the state of our judicial system, where it is improving, and where it is still stuck in the past century. Speakers included Chief Justice George Strathy, Chief Justice of the Ontario Superior Court of Justice Heather Smith, Chief Justice of the Ontario Court of Justice Lise Maisonneuve, LSUC Treasurer Paul Schabas, and the Attorney General of Ontario Yasir Naqvi (among others). Chief Justice Strathy’s speech can be found here. The judiciary noted the following priorities for the upcoming year(s):
After the speeches, the Catzman Award for Professionalism & Civility was awarded to Donald Bayne by the late Justice Marvin A. Catzman’s daughter. The only non-scripted part of the ceremony was when a protester unfurled a banner and started asking for the “impeachment” of a judge for declaring him mentally incompetent. The situation was quickly diffused by the RCMP and other police officers on hand for the ceremony. The fun part of the evening was the cocktail party that followed. Where else do you get to hobnob and brush elbows with so many judges, the Attorney General of Ontario, the Treasurer of the Law Society and the presidents of all of the legal associations in Ontario? So the Courts are officially “open”. Now, do you think they are open to change? I first learned of the novel “January: A Woman Judge’s Season of Disillusion” after retired Justice Susan Lang mentioned it at the OBA Women Lawyers Forum’s “Pathways to Power: Women on the Bench” event that was held in the spring. Justice Lang noted that the author, the Honourable Marie Corbett Q.C., chose to resign from being a judge rather than retire, which is rare. This piqued my interest. What made her lose interest or stop enjoying her work as a judge? The story takes place in January of 1995 when Justice Corbett’s disillusionment with being a judge becomes evident at the same time one of her close friends, Anne Armstrong Gibson, is dying of cancer at the age of 46. The book follows Marie’s daily travels between the courtroom and the hospital room of her dying friend. Through up close and sometimes very personal accounts, she paints a picture of the shortcomings of both the medical and legal systems in the 1990s. Most interesting were the glimpses into this judge’s daily life: her thoughts when she witnessed a poor cross-examination; her routine before and after court; her criticism of sexual assault trials; the feeling of powerlessness she sometimes felt; and her thoughts on feminism and the role of women in law (when she was appointed, women were only 3% of the judiciary and there were only nine women in her law-school class, the largest in its history). In her storytelling the author presents herself as a confident woman who does not shy away from expounding her accomplishments, and in fact, has little patience for those women who do: “I was all too familiar with women of achievement who were loath to acknowledge their accomplishments. Likewise, I had little patience with the women who say ‘I’m only a housewife’ ‘I’m just a secretary,’ I had even less when successful women found it so hard to take a bow and say ‘Yes, I did it.’ . . . Why is it so ingrained in women to diminish what we do and who we are? . . . A man takes a piss somewhere, and they put up a plaque.”[emphasis in original] Weaved throughout the narrative are tales of lunches at private golf and ski clubs, private vacation resorts in the Bahamas, expensive boarding schools, dinner and dancing with Princess Di, and encounters with Margaret Thatcher and Queen Noor, revealing a privileged life that only a few can relate to. But balanced with this are experiences that all too many are familiar with: the scenes of sickness and cancer and Marie’s encounters with the dying Anne. The book presents a unique insight into the judiciary, revealing that not all are suited for such a job, no matter how qualified they may be. Anyone who may be interested in seeking out a position on the bench, or wants to read about the judiciary, women in the law, or simply a tale of friendship (and a reminder to ‘seize the day’) would find this a quick and interesting read. If you would like to learn more about this novel or the Honorable Marie Corbett, I've noticed that she will be giving an "Author’s Talk" at an upcoming Toronto Lawyer’s Association event on October 6, 2016. You can register for this event here. 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. Updated Rules of Professional Conduct: Expanding Our Duty to Report Another Lawyer for Misconduct?6/14/2016 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. The Amendments 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. Other Amendments 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. On May 11, 2016 the Law Society of Upper Canada held its Annual General Meeting. A self-admitted legal geek, and a curious person by nature, I thought I would attend. After all, all members of the Law Society were invited, and I am a member (or technically a ‘licensee’). When I asked around if any other lawyers were going, people would give me an odd look, and say “No, of course not” or “Why would you waste your time?”
Undeterred, at 5 p.m. I walked through the doors of the Law Society fully expecting to enter a small room with Treasurer Janet Minor, CEO Robert Lapper, and a few benchers giving me a funny look for showing up. But that couldn’t have been further from the truth. I walked into a bustling room full of people meeting and greeting each other. While admittedly a lot were benchers, when I signed in at the non-bencher registration table, at least 20 other lawyers and paralegals had already signed in before me (and many came after). I took my seat in the Donald Lamont Learning Centre surprised at the number there and the law geek in me was happy and a little proud (sort of like how Canadians got excited to do the census). The meeting progressed like any other AGM for a corporation. Treasurer Minor called the meeting to order. She reminded us that only those members whose licenses were not currently suspended could be in attendance. Similar to that moment in a wedding where the officiant asks if anyone knows any reason why these two people should not be married to speak now or forever hold their peace, I waited to see if anyone got up to leave. No one did. Treasurer Minor provided a summary of the Annual Report and the five priorities that the LSUC will focus on in coming years: to lead as a professional regulator; engage stakeholders and the public with responsive communications; increase organizational effectiveness, prioritize life-long competence for lawyers and paralegals and enhance access to justice across Ontario. Then bencher Peter Wardle presented the financial statements for 2015 (the LSUC is doing well financially) and the floor was open for questions. While there were a few questions about paralegal issues and the continuing professional development requirements, there were no questions about the LSUC’s finances. And, as there were no motions this year, the meeting was adjourned. Next came the best part of the evening: the AGM reception. I had no idea there was a reception. Up we went to Convocation Hall and we were greeted with wine and wonderful food, and, most importantly, there were interesting and engaging people in attendance. The reception was a great place to interact with individuals from the LSUC and other lawyers and paralegals. I spent the evening chatting it up with benchers, the Treasurer, the CEO and networking with other professionals. Leaving the event, I felt like I had stumbled upon an amazing little secret. This legal geek had a surprisingly good time. Last night I attended the third program in the series “Pathways to Power” presented by the Women Lawyers Forum of the OBA. Like the previous two programs, Women in Politics and Women in the Boardroom, it was a very informative and inspiring evening. The program was chaired by lawyer Ashley Waye of Waye Law and articling student Richa Sandill of Rudner MacDonald LLP. Richa mentioned that the impetus for this program was a comment by a former Minister of Justice who implied that women and visible minorities were not being appointed to the bench because they just "aren't applying”. The WLF thought this would be a good opportunity to inform women on how to apply (*smirk*). The ever impressive and talented Linda Silver Dranoff was the moderator and she did not shy away from asking the panel challenging questions. The distinguished panel included The Honourable Susan E. Lang (retired) from the Court of Appeal for Ontario, The Honourable Faye E. McWatt, from the Superior Court of Justice of Ontario, and The Honourable Victoria A. Starr, from the Ontario Court of Justice. A highlight of some of the questions and answers from last night:
As usual the evening ended with a great networking cocktail party. I always meet such fascinating and accomplished women lawyers at these events and last night was no exception. I was also excited to learn that there will be more “Pathways to Power” programs in the future: Women General and In-House Counsel in the Fall of 2016; Women in Politics (the Ottawa edition) in the Spring of 2017; and Female Founders in Spring 2017. I hope to see some of you at these upcoming events.
Lawyers still need to pay their bills, and as far as I know the banks are not accepting homemade cookies as mortgage payments. Bartering only works if we can find someone who needs our services and who is offering goods or services for which we have a need. However, if we were open to alternative payment options, we may be able to provide legal services to clients who cannot afford legal representation. This is especially true for those practicing in areas with a high number of self-represented litigants such as family law.
Is Bartering Allowed by the LSUC? Nothing in the Rules of Professional Conduct, or the by-laws specifically addresses bartering arrangements. Nevertheless, a lawyer contemplating bartering her legal services should carefully review the Rules and by-Laws to make sure her barter arrangement is in compliance. For example, Rule 3.6-1 provides that a “lawyer shall not charge or accept any amount for a fee or disbursement unless it is fair and reasonable and has been disclosed in a timely fashion.” The goods or services you are receiving must be commensurate with the services you provide. Furthermore, all record-keeping responsibilities should be met and the work should be properly invoiced. The only clear guidance that I could find from the LSUC, was in a decision by the Law Society Tribunal which confirmed the obvious: “Legal services are not to be bartered for sexual favours.” Barter-Exchange Programs Bartering in general has become more sophisticated and moved past the chicken and egg days with numerous “barter-exchange programs” throughout Canada and the United States. A barter exchange acts as a clearinghouse for the exchange of goods and services and keeps track of the value of the barter transactions between members. Members often have to pay dues or fees to join. (For example see, eXmerce, Barter Network Limited and Swap Right). There is little guidance on lawyers using barter exchange networks in Canada. I found a Tax Court of Canada case[1] from 1985 where a lawyer bartered his legal services on a barter exchange network called Tradex. The lawyer would obtain ‘exchange credits’ from other members for his legal services and he would exchange these credits for other services (i.e. dental services for himself and his family). The issue for the Court was the value of those exchange credits for income tax purposes. (Yes, any service or good you receive in payment is considered income and must be reported. See the CRA bulletin on “Barter Transactions”). Not surprisingly, I found more resources for lawyers on bartering exchange programs south of the border. Recently, the Connecticut Bar Association’s Standing Committee on Professional Ethics released an informal opinion on a lawyer’s participation in such a program. The report noted that early ethics opinions from state bar associations and the American Bar Association in the late 1970s were “undeniably hostile” to barter exchanges and the fees charged to their members. However, recent opinions have been more amenable. The Connecticut Bar Association concluded that participation in such an exchange was not unethical, but lawyers must still comply with the relevant rules of professional conduct, including those dealing with confidentiality, client solicitation and advertising. Importantly, the “cardinal principle” still applies: “the fee must not be unreasonable, regardless of the form of payment”.[2] It did not see the fee paid to the barter exchange program to be fee sharing (which is prohibited with a non-lawyer) but confirmed that there should be a written engagement agreement, including that barter currency will be used as the compensation for legal services. To Barter or Not To Barter: If you are considering bartering your legal services (either as a one-off arrangement or through a barter exchange program), be prepared and:
[1] Linett and Karoly v The Minister of National Revenue, 85 DTC 416. [2] Connecticut Bar Association, Standing Committee on Professional Ethics, Informal Opinion 15-04 “Lawyer’s Participation in a Barter-Exchange Program” July 2015 at p. 2 Note: Content from this blog does not constitute legal advice and is for informational purposes only. |
Erin C. Cowling is a former freelance lawyer, entrepreneur, business and career consultant, speaker, writer and CEO and Founder of Flex Legal Network Inc., a network of freelance lawyers.
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