Tansi Nîtôtemtik,
Continuing our coverage of the IBA conference, today we will be reflecting on Seminar 1: Legal Ethics and Professionalism. Which was presented by Kathleen Lickers, I.P.C. and Candice Metallic, IPC and they discussed the Federation of Law Societies of Canada’s - Proposed Model Code Amendments [1]. The agenda included a brief background of the “Model Code”, an overview of the proposed changes to the FLSC model code and important impassioned discussions on systemic discrimination and harassment in the legal community.
The Model Code was developed by the Federation of Law Societies (the “Federation”) to set general rules, guidelines and values for the conduct of legal professionals throughout Canada and was adopted in 2009. The Standing Committee was created by the Federation to review the Model Code regularly to ensure it kept up with changing policies so that it could respond to change in a timely manner.
Due to increasing awareness of discrimination which remains prevalent in the legal profession, the Standing Committee is proposing amendments to Rule 6.3 of the Model Code concerning discrimination, harassment, reprisal and ex-parte communication that will include specific guidance regarding bullying issues and will clarify the relevant obligations. The final amendments will be submitted for approval in December of 2020 after having exhausted appropriate feedback. [2]
6.3 HARASSMENT AND DISCRIMINATION
6.3-1 The principles of human rights laws and related case law apply to the interpretation of this rule. A lawyer must not discriminate against a colleague, employee, client or any other person.
6.3-2 A term used in this rule that is defined in human rights legislation has the same meaning as in the legislation. A lawyer must not harass a colleague, employee, client or any other person.
6.3-3 A lawyer must not sexually harass any person. A lawyer must not sexually harass a colleague, employee, client or any other person.
6.3-4 A lawyer must not engage in any other form of harassment of any person. A lawyer is prohibited from engaging or participating in reprisals against a colleague, employee, client or any other person who has (a) inquired about their rights or the rights of others, (b) made or contemplated making a complaint of discrimination, harassment or sexual harassment, (c) witnessed discrimination, harassment or sexual harassment, or (d) assisted or contemplated assisting in any investigation of or proceeding related to a complaint of discrimination, harassment or sexual harassment.
The focus of this presentation was discrimination and harassment. Not to say that the issues around reprisal and ex-parte communication are not important, but for the context and time constraints the speakers wanted to draw attention to those particular issues. As the current rules and commentary on discrimination and harassment are quite outdated, this effort to update them is aimed at reflecting what people are experiencing in the legal profession now.
The proposed amendments’ new language for Rules 6.3.1 and 6.3.2 (proposed changes are found in the commentary) is intended to remind counsel that they should not discriminate and indeed have an obligation not to discriminate or harass. The original language was unclear and broad, unlike the new language which asserts and affirms the special responsibility of lawyers to respect the requirement of human rights laws and health and safety laws to create safe workplaces. In sustaining the principles of human rights laws, lawyers have a duty to learn and remain current, which grounds continuing professional obligations to keep abreast of new laws as they evolve and to evolve with them.
These are all good changes, but there are gaps in addressing systemic discrimination in these proposed amendments. These gaps highlight the need for advocacy from law associations not just from organizations like the IBA but from all Law Societies and others to draw out what is missing . Unlike the harassment and reprisal section, discrimination is the only area of these rules where the Federation is not wanting to extend to licensees beyond their law firms and work environment. Accountability for conduct in the office but not outside is a noted criticism.
Dismantling systemic discrimination should be one of those professional obligations and duties required to uphold the principles of human rights. The presenters commented that the Federation really missed the mark on this point. By not addressing systemic discrimination, minorities whose distinctions (whether intentional or not) have the effect of imposing burdens or disadvantages on the individual or group. For example, refusing to provide legal services or even employ a person for reasons of personal characteristics. Many examples were given, all demonstrating that much work is needed and feedback from organizations like the IBA is essential to provide a vehicle for change and to further realize ideas for services and programs to combat discrimination. These goals should be the focus of the Federation and not forgotten about.
We would like to leave off with a quote from the Honourable Senator Murray Sinclair:
“Discrimination becomes systemic when it becomes embedded within and perpetuated by an organization, culture, or social system, either intentionally or as an accidental bi-product of innocently motivated practices that adversely affect a defined group because of undeniable attributes.”[3]
Until next time
ReconciliAction YEG
[1] Federation of Law Societies of Canada (FLSC), “Model Code of Professional Conduct” (2019) online: <flsc.ca/national-initiatives/model-code-of-professional-conduct/>.
