Calling for Change: Women, Law, and the Legal Profession

21. Reimagining Legal Ethics After Touchstones for Change

345 CHAPTER 21 REIMAGINING LEGAL ETHICS AFTER TOUCHSTONES FOR CHANGE1 Rose Voyvodic* INTRODUCTION In law, ethical discourse represents a complex network of overlapping and connected understandings of the central concepts that are used to justify self-regulation of the legal profession: independence, the adversary system, self-regulation, and public service.2 The Gender Equality Task Force of the Canadian Bar Association [CBA] focused its critical evaluation of the Canadian legal profession, as well as its prescription for change, around these notions, leading to a “rethinking of the meaning of professionalism.”3 Chaired by then Supreme Court of Canada Justice Bertha Wilson, the group conducted wide-ranging interviews and surveys across Canada for its 1993 Touchstones for Change: Equality, Diversity and Accountability4 report. While its main focus was on the general failure of the profession to embrace gender equality, this report also documented systemic discrimination based on race, disability, and sexual orientation, and formulated 228 recommendations for proactive and reactive change, aimed at law schools, law societies, law firms, government, and the judiciary. Touchstones lives on as a testament to the monumental contribution of eminent Canadian feminist legal scholars and practitioners to the vision of a culture of equality.5 Undoubtedly, their groundbreaking work in imagining the law and its practice differently made Touchstones possible, by engaging many of its members to imagine the legal profession from the perspective of inclusivity. The Touchstones project sparked subsequent engagement by professional bodies in activities involving “equality, diversity and accountability,” notably including the CBA’s 1999 Report on Racial Equality in the Legal Profession.6 However, not all members of the profession received the message of Touchstones in this way: it also sparked controversy and outright 346 Governing Change condemnation by those who were not prepared to accept either the evidence of discriminatory behaviour presented or the remedies proposed to curb it.7 Indeed, many of the key recommendations that would establish the conditions precedent to progress through action plans and commi
ee work have failed to garner sufficient and necessary a
ention, commitment, and resources to see the light of day, despite many efforts to redress systemic barriers.8 The minimally incremental nature of “post-Touchstones” change suggests that, as elsewhere in society, deeply-held values and a
itudes that perpetuate discrimination are responsible for the glacial pace of progress toward a culture of equality within the legal profession.9 How can the values responsible for the marginalization and exclusion of women and racialized lawyers documented in Touchstones and the qualitative research that followed coexist in a profession that also prizes integrity, honesty, and justice? Cynics scoff at the rhetorical “motherhood and apple pie” nature of moral propositions asserted by professional leaders, suggesting that the values of the legal profession serve lawyers best. But this approach ignores the many examples of lawyers who dedicate their professional careers to social justice,10 those who strive to practise competently and ethically in their chosen fields, those who run for office within professional bodies in order to advance an agenda for progressive change, and all others who reject the notion of self-serving professionalism in favour of professionalism in the public interest. Demanding that professionalism incorporate the public interest does two things: it challenges the familiar, time-honoured traditions of the legal profession11 that earn it the right to self-regulate,12 and it forces values and a
itudes that do not incorporate respect for all of its members into the open.13 In this brief paper, I will begin to discuss the ways in which the political, cultural, and organizational realities are at the same time the profession’s sine qua non and the locus of unexamined assumptions that affirm and perpetuate resistance to change. I will do so by surveying scholarship that explores the potential for legal ethics to be reimagined in a manner that promotes an “ethical style of thinking” as an aspect of professionalism. I will then begin to consider how this style of thinking may be stimulated and fostered through legal education. THE CULTURE OF THE LEGAL PROFESSION The sources of ethics may be found in the “ethical tradition including professional myths, lore and narrative, and … the standards of conduct that Reimagining Legal Ethics Aer Touchstones for Change 347 an observing anthropologist would describe as the profession’s conventions of actual practice.”14 When the traditions and conventions of the legal profession are...