The View From Up North: Where Do Old, White Lawyers Go To... Serve?
Why are minorities underrepresented on the governing body of the Law Society of Upper Canada, a very powerful and important institution?
We have bencher elections coming up in April for the Law Society of Upper Canada. I know this because I keep getting annoying emails from bencher candidates. I also received a snail mail package last week filled with glossy candidate brochures. They look slick, but they’re wasted on me. I don’t think I’ve ever voted in the bencher elections. I’m not sure I will this year either. The good news is, my failure to vote will not open the door for the Communists to take over the Law Society, as my mother always warned about when urging me to fulfill my civic duty.
For those of you who don’t know, benchers are lawyers who are elected by their fellow lawyers to sit on the ruling body of the Law Society. Actually, there are eight lay benchers who are appointed by the government, five elected paralegal benchers, and 40 elected lawyer benchers. The big bencher is called the Treasurer. The current one is Janet Minor. The Treasurer is chosen by the other benchers every year and typically sits for two one-year terms. We pay the Treasurer an “honorarium” of $175,000 per annum. I put the word honorarium in quotes because a six-figure payout challenges my definition of honorarium. I guess we ran out of LSUC pens and mugs.
Interesting side note, the first Treasurer of the Law Society was killed in a duel. I’m not kidding. John White, an English lawyer, was appointed Attorney General of Upper Canada (the old, cooler name for Ontario) in 1791. In 1797, he helped found the Law Society and was named its inaugural Treasurer. A few years later, Mr. White insulted a Mrs. Small in what was described as a “social exchange.” Mr. Small, the guardian of his wife’s honour, challenged Mr. White to a duel. Mr. White did something we would consider crazy today — he accepted.
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The next morning, Mr. Small and Mr. White paced it off and shot at each other. White took one in the ribs. He lingered in excruciating, pre-morphine pain before dying 36 hours later. Everybody was exceedingly nice to Mrs. Small from that day on.
I digress…
What exactly do benchers do? They sit in Convocation meetings — which is just a fancy word for a type of board meeting — and vote on important stuff that relates to lawyers. They sit on committees to help enact important policies, and sit as panelists during important lawyer discipline cases.
I took a look at the LSUC website to find out who our current benchers are. I wanted to understand who represents both the legal profession and the citizens of Ontario, because the Law Society was, allegedly, set up to protect the public interest.
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Thus, I conducted a very unscientific study. I looked at each lawyer bencher’s picture and profile to see what I could determine. Here are my unscientific findings:
- Middle-aged or older, white, male, small firm: 14
- Middle-aged or older, white, female, small firm: 13
- Middle-aged or older, white, male, big firm: 7
- Middle-aged or older, non-white, male, small firm: 2
- Middle-aged or older, non-white, male, big firm: 1
- Middle-aged or older, white, female, big firm: 1
- Younger than middle-aged, white, female, small firm: 1
- Middle-aged or older, non-white, female, small firm: 1
Some housekeeping. I made middle-age 45. “Big firm” means a firm with 70 or more lawyers. “Small firm” includes smaller law firms, government, and teaching positions.
Breakdown:
1. Twenty-four males, 16 females. Not quite half, 60/40 is pretty good.
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2. Thirty-one small firm lawyers, nine Biglaw.
3. Almost all women benchers work in small firms, government, or education. Only one woman bencher, Barb Murchie, works in Biglaw (Bennett Jones).
4. Thirty-nine benchers are middle-aged or older.
5. Thirty-six white benchers, four non-white benchers.
What? Where are all the persons of color? I really thought the profession that protects human rights would be led by a little less pasty cast of characters. Yet, only 10 percent of convocation are visible minorities?
As of 2011, Canada’s population consisted of 23.3% visible minorities (up from 14% in 1996). With nearly a quarter of Canada’s population non-white, you would hope that nearly a quarter of the benchers would mirror it.
With respect to lawyers in general, approximately 17% are visible minorities, which is nearly double the percentage of minority lawyers as of 2001. That means a lot more minority lawyers are flooding into the system. That’s a good thing. But, they should be proportionally represented, right?
Can you say “systemic racism”? Minorities are underrepresented on the governing body of the Law Society, a very powerful and important institution. Moreover, recent studies show that minorities find it more challenging to enter the profession and more challenging to advance than white lawyers. Black lawyers, for example, disproportionately practice in small firms. Additionally, visible minorities report they face overt discrimination and bias within the profession, with complaints from some minority lawyers that clients, judges, and other lawyers commonly assume they are incompetent.
Yikes.
It’s pretty clear to me that the profession charged with protecting our human rights has to do some mopping and dusting in its own house.
Yet, not everyone takes such a bleak view.
Jeffrey Lem is a bencher. He is also a proud Chinese-Canadian who spent many years as a leading real estate expert at several Biglaw firms. In addition to sitting as a bencher, he escaped Biglaw to take a position as the Director of Titles for the Ontario government. Jeffrey has a much more — let’s call it hopeful — take on why Convocation is so lily white. He says Convocation simply hasn’t caught up with society for a very simple reason — being a bencher is an old lawyer’s game.
Acting as a bencher requires a ton of time. It also requires a lot of connections to get elected — it’s a popularity contest, after all. Older lawyers, for the most part, have a bigger network than younger lawyers. Additionally, benchers are often at the stage in their careers where the kids have left the nest and they aren’t as driven to grow a practice. Many want to give back to the profession. Thus, they take the time they might otherwise use to build a practice and give a portion of that to acting as a bencher. Young lawyers are often too obsessed with making money building a practice to give away valuable hours to benching (would that be the term?!?).
The cure for Jeffrey, therefore, is pretty simple — keep putting more minority lawyers into the system and let them grow handsomely gray at the temples. As mentioned above, we’ve already seen a dramatic increase in the percentage of visible minorities as lawyers. In 2001, it was 9.2%. A decade and a half later it’s around 17%.
Jeffrey thinks over the next generation or two the number of minority benchers will increase naturally as the larger cohort of minority lawyers in the profession, currently in the early stages of their careers, get to the age and stage where they have the connections, desire, and time to serve as benchers.
As I said, it’s a very hopeful view of both society and the profession. I hope he’s right.
In the meantime, maybe I should get off my high horse and actually vote. I might actually make a difference.
That’s the View From Up North. Have a great week.
Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).