A Case Against Regulating Diversity
The upper reaches of law firms, the judiciary, legal academia, and the law societies appear to be predominantly white, privileged, and male. I suspect this is partially owing to demographic trends, in that today’s pool of law firm leaders and judges reflect the demographics of law student ranks of the 1970s or 1980s where, as a percentage of each graduating class, there were more white privileged men attending law school than there are now. But it is also likely the product of systemic, self-perpetuating conditions that, despite shifting demographics, make it easier for privileged white men to advance in law than others, yielding disproportionate representation of the already privileged amongst the upper ranks.
In light of these two features, I cannot conceive of principled arguments against the need for and benefits of greater diversity in the legal profession. Any argument against diversity, or suggesting that the lack of diversity is a non-issue, is likely to be characterized by wilful blindness, racism, classism or some union of those three. The benefits of diversity are manifest. The need for it is too, particularly if we are to uphold the pluralist values underpinning Canadian society and meet the demands of a globalized market.
What one can argue against is the regulation of diversity by the law societies across Canada. Even here I do not think there are particularly good arguments against the law societies regulating, if only with a light touch, diversity in the profession. Nevertheless, there are principled, non-repugnant arguments against regulation and this is my attempt at articulating those arguments.
For the purposes of setting the arguments’ backdrop, I presume that the aim of diversity regulation would be to achieve roughly proportionate representation of heretofore underrepresented groups, including ethnic, economic, gender, or orientation groups. Regulation might also be aimed at achieving equality of opportunity regardless of background. Such regulation would mandate or somehow incent law firms to diversify their ranks or otherwise equalize the playing field such that the opportunities available to a select few to rise to leadership positions are available equally to all.
Why should law societies not engage in such regulation?
First, while certain aspects of legal practice are regulated, lawyers and law firms are otherwise governed by the free market and tradition. They live and die by the quality of the product and service they provide. The market is their judge and tradition their guide. Law firms tailor their offerings as they see fit, and key to that process is hiring and advancing who they see as best fit, focusing on their skillset in that determination. Regulating diversity would undermine this long-standing free market principle and impose strictures on law firms that would improperly affect their ability to hire and advance lawyers of their choosing. Such regulation would also arguably increase the cost of doing business and reduce margins insofar as meeting diversity requirements would require investment in hiring and human resources functions.
Another aspect to this free market rationale is the suggestion that, insofar as the market for legal services demands diversity, legal service providers will respond and advance diversity at risk of losing market share. This market-driven response belies the need for regulation, would be more globally cost-effective than regulation because the cost of regulation will not be incurred, and more efficient insofar as market forces are, or at least can be, more nimble than regulatory forces.
Under this argument, regulating diversity would be costly and would interfere with law firms’ ability to mould their ranks. Regulating diversity would also be unnecessary given market forces. Regulating conflicts and trust monies is one thing. Regulating who is hired and why is categorically different, would be too costly, and too great an affront to free enterprise and tradition.
Second, regulating diversity within the legal profession would be merely a Band-Aid solution to what is likely a deeper societal problem of access to post-secondary education and thereby law school itself. Regulating diversity would be ineffectual insofar as the law societies’ reach cannot extend far enough into society to address the underlying reasons why prominent positions in law firms and the judiciary are disproportionately held by already privileged demographics.
That is, universities and, even more so, law schools, are still comprised disproportionately of the privileged and mono-cultural. Accordingly, while regulating the profession may be well and good, if the pipeline to the profession lacks sufficient diversity, such regulation will not yield results, would be wasteful, and should therefore not be pursued at all.
Third, and relatedly, to the extent regulating diversity would be a Band-Aid solution, it would only conveniently bury the concern about the lack of diversity in law. Because the underlying causes of the lack of diversity in law cannot be adequately if at all addressed through the law societies’ regulation, the effect of those causes will not be the legal profession’s problem. And to the extent it is the profession’s problem, the existence of the Band-Aid solution will be identified as the profession’s best effort at addressing it. This will alleviate pressure on the profession to diversify its ranks, resulting in marginal improvement or the maintenance of the status quo, neither of which are good outcomes. For these reasons, to avoid these pitfalls, regulation should not occur at all.
Aditya Badami is an Associate at Norton Rose Fulbright in Calgary and a Sessional Instructor at the University of Calgary Faculty of Law. He studied law at the University of Toronto and is from Montreal -- via Bangalore, India.