Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 8, 2019 7 www.lawtimesnews.com COMMENT BY ELIAS MUNSHYA THE Law Society of Ontario has implemented a policy re- quiring its licensed lawyers and paralegals to create and abide by an individual statement of prin- ciples. In this statement, licensees must acknowledge their obliga- tion to promote equality, diver- sity and inclusion, generally, and in their behaviour toward col- leagues, employees, clients and the public. Before this policy took effect, there was robust debate, pitting supporters against critics. The LSO bencher elections are just around the corner and the polarization has re- emerged. I cannot support the state- ment of principles for at least two reasons: It violates the right to free speech and the right to re- ligious liberty. The LSO has a legitimate in- terest to regulate the profession and, perhaps, ensure that the legal profession is free of sexism, racism and homophobia. This role is so vital that the LSO and indeed Ontario society must work hard together to fight these vices. The SOP, however, does not just romanticize equality, but it compels its licensees to profess that they have carried out and believe in a policy. This is unconstitutional co- ercion. As a Canadian licensed driv- er, I have an obligation to obey speed limits on the roads. How- ever, I should not bear further obligations to profess, publicly or privately, that speed limits are good and that I have personally followed them. The government cannot compel me to speak a certain way, even if what it wants me to speak is right and true. It is rarely the content of propagan- da that makes it unlawful but the coercive means used in its propagation. The values of diversity, inclu- sion and equality can themselves be betrayed by a government ac- tor who insists on using coercion and force to implement their im- portance. While the LSO has the man- date to regulate lawyers, it has no mandate to regulate the Ontario or Canadian public. The LSO cannot do indirect- ly what it cannot do directly. The Ontario public bears no obligation to promote inclusion, diversity and equality, and since the public does not have that ob- ligation, a state actor should not compel lawyers to behave in a way that promotes those values to the very public that has no such obligation. Cultural and religious com- munities, which are part of the Ontario public, do not have an obligation to enforce or promote equality, inclusion and diversity, in the same sense that the SOP requires. Insisting that a lawyer be- haves inclusively before the On- tario public pits lawyers against the very public they are called to serve. Ontario lawyers attend ex- clusive Friday prayers, celebrate mass on Sunday and worship in temples. These are social in- stitutions with constitutionally protected rights to religious dis- crimination. As a visible minority (Ushi tribe, Zambia and Katanga) in Canada, I see why the SOP could be appealing to racial- ized lawyers. However, no mat- ter how aggrieved we are with historical injustices and dis- crimination, we must not allow a state-sponsored violation of fundamental liberties to be used to address these. Lawyers play an essential role in our society; that role, how- ever, does not include becoming state agents that parrot state- sponsored speech. Lawyers are called to serve the public. This public, unfortunately, includes racists and some crimi- nals. The idea that lawyers exist to help only a particular kind of Canadian is repugnant to the rule of law. When we impose morality and decency as the prerequisite to providing or receiving legal services, we are insulting a cen- tral tenet of a free and democrat- ic society. I am skeptical whether the SOP would promote diversity in the legal profession. Nothing promotes diversity better than diversity in the institutions that matter. The LSO must become a vis- ible partner in demanding ju- dicial diversity from politicians who appoint judges. Having a racially diverse bench is a much more notice- able way to promote diversity in the legal profession than asking every lawyer to sign a piece of paper professing that they have behaved in an inclusive or di- verse manner. As an Alberta lawyer, I don't believe a law society in Canada, as a state actor, should force lawyers to profess that they not only believe in inclusive values but also that they will openly promote these values inside and outside the legal profession. Both Ontario and Canada already have legislation in place that prohibits discrimination; there is no need for the law so- ciety to come up with new rules, particularly if the new regula- tions violate the Charter. There is no need for this extra licensing burden on lawyers. If we already have a plethora of statutes that prohibit dis- crimination by lawyers, why should lawyers have this addi- tional burden of making a dec- laration? The LSO wants to go beyond its mandate by trying to regulate areas that it has no duty to regulate: the diversity of opinions regarding equality and inclusion in a free and demo- cratic society. LT Elias Munshya practises law at Munshya Law, an Alberta law firm based in Calgary and Red Deer. BY DORON GOLD W hat's a well-being pledge for legal employers? Many of you know that, in 2016, the Law Society of Ontario's Mental Health Working Group, after extensive and rigourous information gathering, came out with its important report, "The Mental Health Strategy Task Force." Since that time, this excellent, com- prehensive and sophisticated report has underpinned how the LSO approaches mental health and addictions. Other legal regulators and organizations in numer- ous jurisdictions in North America have, as well, embarked upon an effort to have the profession approach mental health and addiction in a more nuanced, com- passionate manner. So, when, in an effort to expand and build upon its previous work in this area, the LSO initiated further information- gathering sessions and requested that I again make submissions, one of the things it wanted to know was what's new in the wider lawyer wellness world. Being the keeners that we lawyers are, it's not surprising that there's a lot that's being studied, explored and implement- ed. And one of the most exciting and in- novative initiatives currently being actu- alized is the aforementioned ABA Work- ing Group's Well-Being Pledge for Legal Employers. The idea for the pledge had its roots in the highly regarded and widely dis- seminated 2016 study of lawyer wellness conducted by CoLAP and the Hazelden Betty Ford Foundation. The study confirmed the dispropor- tionately high levels of ad- diction and mental health challenges among lawyers, as compared to the general popu- lation. Despite these concerning facts, it is also widely known that lawyers are reluctant to seek help for such prob- lems due to rampant stigma throughout the profession. Therefore, as one powerful tool in combatting this stigma, CoLAP created this behav- ioural health campaign and pledge to attack the problem from the employer side, by encouraging a movement toward healthier legal work environments. As described by the ABA itself, the pledge "is designed to support lawyer well-being and address the profession's troubling rates of alcohol and other sub- stance-use disorders, as well as mental health issues. Based on a framework developed by working group member Patrick Krill, the campaign's goals are to raise awareness, facilitate a reduction in the incidence of problematic substance use and mental health distress and improve lawyer well- being. From education to policies to cul- ture, the seven-point pledge identified in the campaign ref lects the core areas on which legal employers should focus and the concrete steps they should take as they seek to achieve those goals." The preamble of the pledge begins as follows: "Recognizing that high levels of problematic substance use and mental health distress present a sig- nificant challenge for the legal profession, and acknowledg- ing that more can and should be done to improve the health and well-being of lawyers, we the attorneys of (firm name) hereby pledge our support for this innovative campaign and will work to adopt and priori- tize its seven-point framework for building a better future." Clear enough. The pledge is designed to create a movement toward lawyer well-being by enlisting employers in making these issues a priority. The seven points of the pledge include providing "enhanced and robust educa- tion to attorneys and staff on topics re- lated to well-being, mental health, and substance use disorders." It also means creating "visible part- nerships with outside resources com- mitted to reducing substance use dis- orders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPs, and experts in the field," as well as giving "confiden- tial access to addiction and mental health experts and resources, including free, in- house, self-assessment tools." It also means creating "proactive policies and protocols to support assess- ment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment" and "actively and consistently demonstrate that help-seeking and self- care are core cultural values, by regularly supporting programs to improve physi- cal, mental and emotional well-being." Almost 100 of the most prominent law firms, private companies and law schools in the U.S. have become signatories to the pledge so far. The wellness movement in the legal profession has taken off and one of the organizers, Tracy Kepler, tells me that she is thrilled to hear that Canadian legal en- tities are next in line. "We are always looking for more champions to spread this movement of change toward improving the health and well-being of the legal profession," she says. To become a signatory to the pledge, contact Kepler at tracy.kepler@ameri- canbar.org and state your intention. Thereafter, they will do an annual check-in to identify the firm's efforts to- ward implementing the pledge. Each firm creates its own plan and strategy based upon its own needs, abili- ties and priorities. The more that legal employers and law schools become aware of and become partners in promoting wellness in their ranks, the more we can defeat mental health and addiction stigma and get peo- ple the help they need and the health they deserve. There is definitely something new un- der the sun. LT Doron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's available at dorongold.com. Speaker's Corner Why I don't support the statement of principles Well-being pledge an important step forward The Lawyer Therapist Doron Gold

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