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Harassment and discrimination in articling

  • October 01, 2019
  • Elizabeth Aspinall

: a right or benefit that is given to some people and not to others
: a special opportunity to do something that makes you proud
        Merriam-Webster English Language Learners

Like many others, law appealed to me because I care deeply about people. I consider it a privilege to work for clients, work with colleagues in resolving clients’ legal problems, teach law students, and now — as a Practice Advisor and Equity Ombudsperson -—advise and assist other lawyers. Being a lawyer is indeed “a special opportunity to do something that makes me proud”. It is also a particularly special benefit.

Today, that privilege and pride is undermined by the fact that in Alberta, one third of articling students and young lawyers reports experiencing harassment or discrimination during articling recruitment, articling, or in the early years of practice.

In the Articling Student Survey conducted by the Law Society in May and June 2019, students and lawyers called to the Bar in the last five years answered questions about their experience in the articling recruitment process, in articling, and in practice. In addition to questions about how prepared they were for practice after articling, they also answered questions about what resources are available to them, and whether they have experienced discrimination or harassment. Enough students responded to the survey that the sample was representative and the results statistically meaningful.

The statistics revealed that reporting of discrimination and harassment are problems across all firm sizes. These demographics track with the Law Society’s overall membership proportions in relation to firm size and urban/rural setting.

In addition to the concerning percentage of students who report experiencing discrimination and harassment, most students and young lawyers report that they are unaware of resources available to address discrimination and harassment. In any event, they believe that no action is taken when discrimination and harassment are reported.  Without action by those with the power to address the conduct, the resources are potentially meaningless. The fear of reprisal and potential loss of a student’s articling position compel students to stay silent when they are discriminated against or harassed. In short, they just want to get through their articles and will put up with discrimination and harassment so that they can get their licenses.

These are people we know, not unknown people whom we can somehow dismiss as statistics, numbers or unknown people in far-flung corners of the world. These are the young people (mostly women, but also men) who work in the next office and down the hall, people with whom we enjoy lunch, share laughs, and share the stresses and joys of practice. These are our friends and our colleagues, and they are the future of our profession.

Their responses read like a modern-day Dickensian comment on the legal profession.  Students are asked to complete personal tasks for principals that are unrelated to practice and that are sometimes demeaning, workplaces are toxic, sexual overtones accompany tasks which students are asked to complete, partners do not believe students who complain about harassment or discrimination, or even if the report is acknowledged as credible, “rainmakers” are protected. The prevailing attitude appears to be that those who bring in work should be protected, whatever the cost. If this was ever acceptable, it is not now.

Students and lawyers alike are legitimately looking to the Law Society, asking what can be and is being done to remedy this situation. The Law Society’s immediate response is essentially five-pronged. The Law Society is:

  1. Establishing a Practice Foundation Advisory Committee comprised of members of the profession and Law Society staff. This Committee will link the Law Society to the legal community, will develop recommendations to address immediate issues uncovered in the survey and improve the future of articling. It will also promote further engagement with the profession.
  2. Launching a Respectful Workplace Model Policy. The policy will incorporate obligations under the occupational health and safety, and human rights legislation, as well as lawyers’ particular obligations under the Code of Conduct. It will be accompanied by materials to provide context for the model policy, and will include guides for complainants and firms. Over the coming months, the Law Society will also be conducting in-person training sessions in Calgary and Edmonton about the model policy, as well as webinars. The Law Society is also partnering in the launch of the policy with the CBA.
  3. Investigating mandatory training of principals. Ultimately the Law Society intends to develop recommendations around such training.
  4. Developing a proposal for safe reporting to the Law Society regarding harassment and discrimination.
  5. Working with the Federation of Law Societies to amend rule 6.3 of the Code of Conduct (the harassment and discrimination provisions of the Code). The amended provisions will aim to clarify:  what constitutes harassment and discrimination; that lawyers should report harassment and discrimination when they see it happening to others; and that conduct is not limited to occurrences “in the office”. That is, as lawyers, we have an obligation not to harass or discriminate against anyone at any time.

The reality is that these steps are only the beginning of what will be the long and often difficult process of implementing a systems change within our profession. The ultimate goal will of course be the fundamental altering of a culture that presently appears callous of the particular vulnerability of students and junior lawyers.

Certainly it is clear that the Law Society must lead the profession through the necessary changes. It will do that. Each of us, each law society member, and each firm or in-house department, has an important role in recognizing the needed changes, and working to implement them. Each of us must recognize the problems and, when necessary, have difficult conversations with our colleagues to address the problems. Each of us must work together to bring about needed change.

ELIZABETH ASPINALL is a Practice Advisor and the Equity Ombudsperson at the Law Society of Alberta. Prior to joining the Law Society, she practiced at JSS Barristers in Calgary. Elizabeth is a member of the CBA Alberta Editorial and Equality, Diversity & Inclusion Committees.