Nova Scotia Barristers’ Society acknowledges systemic discrimination and makes future commitments to address diversity issues

The Nova Scotia Barristers’ Society (NSBS) has released a statement saying that it acknowledges and regrets the existence of systemic discrimination in the Nova Scotia justice system and within the NSBS. They have released the statement as they feel that acknowledgement of the systemic discrimination which exists within the Society is a step towards improving the society’s work in creating change and protecting the public interest.

The NSBS has defined the term systemic discrimination, to mean “a system of disproportionate opportunities or disadvantages for people with a common set of characteristics such as race, gender, disability, sexual orientation, and/or socio-economic status. For example, the mistreatment of Indigenous and Black communities throughout the justice system has been chronicled in the Marshall Inquiry, the Truth and Reconciliation Commission of Canada, and the National Inquiry into Missing and Murdered Indigenous Women and Girls. It has been recognized by the Supreme Court of Canada and retold through the voices of the Idle No More and Black Lives Matter movements”.

The NSBS has recognised that where systemic discrimination manifests in policies and procedures, there must be modification of policies and procedures, as well and work must be done to accommodate individual members of equity-seeking communities, including those who are members of the bar.

As a result of the acknowledgement, the society has recognised the need for action and education, launching new commitments designed to reduce barriers created by racism, unconscious bias and discrimination. This will include a comprehensive external, independent review of the NSBS regulatory policies and processes to identify and address any areas of systemic discrimination that exist within the Society. With Doug Ruck, QC appointed as the independent, external reviewer.

Read more about the acknowledgement and the commitments here. 

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Victorian Legal Services Board and Commissioner welcomes findings of report into sexual harrasment in the court system

The Victorian Legal Services Board and Commissioner has responded to a new report examining  Sexual Harassment in Victorian Courts. The report was independently produced by Dr Helen Szoke, former Commissioner of the Victorian Equal Opportunity and Human Rights Commission. The final report was released on the 19th of April, and examined measures to prevent sexual harassment, as well as improve reporting and support for those who experience sexual harassment,  and to raise awareness, and ensure accountability across the state’s courts.

The report included recommendations including:

  • the development, promotion and implementation of a sexual harassment policy that covers all staff and contractors
  • an independent review into the court’s recruitment process
  • targeted sexual harassment and discrimination training
  • an annual anonymous survey into harassment in the courts system

The Victorian Legal Services Board has acknowledged the report and its contents; expressing its support for the recommendations.

Victorian Legal Services Board CEO and Commissioner, Fiona McLeay has said: “The report’s 20 recommendations offer a clear roadmap for the courts and VCAT to foster respectful cultures and ensure safe workplaces. Like our 2019 study into sexual harassment in the legal profession, this report found that sexual harassment and the silence surrounding this behavior was perpetuated by power inequalities. We must build a culture where sexual harassment is no longer tolerated and where victim-survivors and bystanders feel safe to speak up. We look forward to working with the government and the courts to implement these changes to make a difference to everyone who works in the legal sector in Victoria”.

Read the full report here, or the Victorian Legal Services Board and Commissioner’s response here.

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Educating Antiracist Lawyers: The Race and the Equal Protection of the Laws Program at Dickinson Law

Abstract

The year 2020 has forced us, as a nation, to recognize painful realities about systemic racism in our country and our legal system. The fallacies in our founding documents and the vestiges of our slave past are so woven into our national culture that they became hard to see except for those who suffered their daily indignities, hardships, and fears. As legal educators, we must face the role we have played in helping build the machinery of structural racism by supplying generation after generation of those who maintain that machinery and prosper within it. In this critical moment of our country’s history, we, as legal educators, must train and prepare a generation of lawyers to once and for all complete the work of the Civil Rights Movement and purge what remains of racism from our legal system – to build better safeguards to ensure that all of us, everyone, has the equal protection of the laws promised by the 14th Amendment of our Constitution.

This article is one of three interdependent articles authored by Penn State Dickinson Law faculty and staff. These articles are meant to be read together to chart the vision and implementation for building an Antiracist law school and providing a template for an Antiracist legal academy and legal profession. This first article, Danielle Conway, Bekah Saidman-Krauss, and Rebecca Schreiber, “Building an Antiracist Law School: Inclusivity in Admissions and Retention of Diverse Students—Leadership Determines DEI Success” can be downloaded on from SSRN. The third in this series is Amy Gaudion, “Exploring Race and Racism in the Law School Curriculum: an Administrator’s View on Adopting an Anti-Racist Curriculum.”

As educators, we must recognize our unique opportunity and important responsibility to combat racism in our educational mission. We must do more than transfer legal knowledge and skills to our students. We must cultivate within them, a principled, enduring commitment to work for true equality over the course of their careers and practice law in a way that promotes equal treatment of all. To do this we must reconsider not only what we teach, but how we teach it.

This essay sets out one possibility. It describes the Race and Equal Protection of the Laws program at Penn State Dickinson Law. This innovative program draws from Critical Theory and Critical Pedagogy to develop an educational approach with the objective of transforming how our students see their place and role in our evolving, flawed democracy. It incorporates the work of Critical Race Theory to help students understand the root causes of systemic racism and why the landmark decisions of the Civil Rights Movement have not realized their potential to change the lived experience of Blacks and people of Color. It adapts principles of Shared Praxis, an approach to teaching grounded in Critical Pedagogy that guides students to a deepening consciousness of the problem, explores with them sources of law and justice that can be brought to bear, and invites them to develop their own carefully considered response as law students and as lawyers.
During this yearlong course, students will learn and work as co-investigators with faculty members and other students to better understand the relationship between race and different areas of the law including housing, health care, criminal justice, democracy, capitalism and education.

Groome, Dermot, Educating Antiracist Lawyers: The Race and the Equal Protection of the Laws Program at Dickinson Law (March 5, 2021). Rutgers Race and the Law Review, Forthcoming.

Read the full article on SSRN.

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Bar Standards Board of England and Wales publishes data showing that female barristers and those from ethnic minorities earn less than white males

On the 5th November, the Bar Standards Board (BSB) published new analysis surrounding its data on barristers’ income by gender and ethnicity. The research demonstrates that female barristers are likely to earn less than male barristers and that those from Black, Asian and other minority ethnic groups are likely to earn less than White barristers. This analysis remained consistent when looking at the income of barristers practising within the same area of law, within the same parts of the country, and amongst those with similar seniority in terms of how long they have been practising.

The report shows that income differences are particularly marked when looking at gender and ethnicity together, with female barristers from minority ethnic backgrounds being the lowest earning group and white male barristers being the highest earning group.

The BSB has pointed out that they collect data on income as part of the annual process by which barristers renew their practising certificates. The report examines the gross income of barristers and is based entirely on figures from before the impact of the current pandemic. Around one-fifth of barristers are employed and for them by “income” the report refers to their gross income before tax and national insurance etc. For the four-fifths of barristers who are self-employed, their “income” is their total fee income (excluding VAT) before they pay the costs of their chambers, which is estimated typically to take between 20 and 40 per cent of their income.

BSB Director General, Mark Neale, said: “This report is based on figures relating to barristers’ incomes in 2018 so predates the current pandemic which has had a significant effect on many barristers’ incomes. It is not the levels of incomes that are our focus here, however, but the disparities between different groups.  These disparities are marked and cannot be explained away by seniority, geography or area of law. The disparities underline why the Bar Standards Board will continue to prioritise its work on diversity and challenge the Bar to do more and better in combatting discrimination affecting the progression of women and of barristers from Black, Asian and Ethnic Minority backgrounds.”

Read the full report on the BSB’s website. (PDF)

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ABA study reveals that disabled and LBGTQ+ lawyers face discrimination

A study carried out by the ABA in collaboration with the Burton Blatt Institute at Syracuse University has found that lawyers who either identify as having disabilities or who identify as LGBTQ+ commonly report experiencing both subtle and overt forms of discrimination at their workplaces.

The study surveyed 3,590 lawyers, including individuals from every state and the District of Columbia, and was conducted over the course of 2018 to 2019. The study examines individuals with multiple identities that intersect, such as people of differing sexual orientations and gender identities who also have disabilities.

ABA President Judy Perry Martinez has said that the“study is an important first step in working towards a more inclusive and better legal profession by identifying bias and stigmas against LGBTQ+ lawyers as well as lawyers with disabilities. The ABA remains committed to its core goal of eliminating bias and enhancing diversity. Discrimination against people with disabilities and LGBTQ+ individuals, whether structural or unintentional, needs to be eradicated.”

Among the key findings of the study were:

4 of 10 respondents reported perceptions or experiences of subtle but unintentional biases. 1 in 5 respondents noted the experience of subtle and intentional biases.

Approximately 16.6% of the lawyers responding identified as lesbian, gay or bisexual, and 0.4% identified their sexual orientation as open. Of 67 lawyers who were women and identified as LGB with a health condition, slightly more than half reported they had experienced discrimination in their workplaces.

Read the full ABA report.

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ABA issues new guidance on lawyer misconduct

On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.

ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.

The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.

The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”

Read the formal opinion and the model rule,  or read the ABA’s statement on the new guidance. 

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Law Society of Alberta consultation on model code of conduct amendments

The Law Society of Alberta has extended the deadline of a consultation on an updated model code of conduct to the 30th June.

The amendments to Model Code Rule 6.3 are centred around discrimination and harassment. The draft amendments aim to provide clearer guidance on prohibitions against discrimination, harassment and bullying. This is following feedback from the recent articling survey and the launch of the model Respectful Workplace Policy.

The Society is seeking feedback from a wide range of stakeholders on draft amendments to the Model Code.

See the proposed rules as a PDF, and also see the details of the consultation as a PDF.

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