Oaths and Affirmations: the Law as Occupation or Profession

Jonathan Kay has written a piece on the Law Society of Upper Canada’s new policy requiring lawyers to (a) create a Statement of Principles that speaks to the values of diversity, equity and inclusion and (b) affirm their having acted in accordance with that Statement (I’ll refer to the whole piece as the “ED&I Affirmation“). Kay’s piece can be read here: Law society’s inflated view of lawyers’ importance leads it to compel speech. My earlier post on the new policy can be read here. I think Kay gets a few things wrong in his piece, and I’d like to explore them, and through that identify an underlying incorrect assumption in his piece that I think grounds his objections to the Statement – namely his view that the law is (simply) an occupation and not a profession.

One thing Kay correctly diagnoses, and which lawyers constantly need to be on guard about, is the profession’s seemingly inherent vainglory. The only other set of people as insistent on patting their own backs about their irreducible goodness and indispensability to society are journalists. It’s an unattractive trait in both groups, and one we should strive to avoid. I’m not particularly quick to dismiss the value of traditions, but I agree with Kay that “pompous atmospherics and conceits” should be critically assessed and discarded when prudent. Sanctimony isn’t a good look on anyone. (That being said, as I’ll discuss further below, there is some value in the stories lawyers tell about themselves (to themselves and to others) – but the manner in which the teller tells the tale is important.)

(I’m going to bracket for future discussion Kay’s concerns about compelled speech. I think Kay is misconstruing the situation, but it’s a close-run thing, and deserves more attention than I’m going to spend on it in this post. For those who might object that I’m trying to hide the ball by deferring discussion of this topic, yes, I realize that the issue of compelled speech is in some sense at the heart of this entire debate, and so deferring the discussion is a bit precious, but there’s only so much time in the day, etc., etc.)

At the heart of Kay’s piece are two stories, which I will deal with in turn because they illuminate slightly different aspects of the matter. The first story Kay tells is about when he practiced law as a tax lawyer; he notes that his clients did not “evince the slightest interest in my ideas about diversity or inclusion. … They didn’t want to know about my inner life, nor I theirs.” True as that may have been when Kay was practicing, the contemporary client concern with diversity and inclusion is real and durable, particular in the type of environments in which Kay once practiced: it is increasingly the case, particularly in the United States, that corporate clients (including the kinds that hire firms like Kay’s former firm) are requiring their outside law firms to meet diversity requirements (“Facebook Inc.’s legal department requires outside counsel teams working directly on a matter to be 33 percent composed of women and ethnic minorities”), and efforts at promoting diversity and inclusion are backed by both volunteer lawyer organizations (e.g., the American Bar Association) and organizations representing large numbers of the largest corporate clients (see for example, the U.S. Leadership Council on Legal Diversity and the Canadian Legal Leaders for Diversity). Now, Kay might simply note all of this activity as evidence of how far the rot has spread, that we’re in the midst of a kind of social psychosis about diversity and that it has infected not only the lawyers, but the clients too. Maybe, though given Kay’s description of lawyers as “fee-for-service worker[s] plying my trade for a salary, no different from a cook, a tailor or a journalist” (about which more later), presumably then a “the customer is always right” ethos prevails and if the clients want their lawyers to trumpet diversity, well, then, lawyers better get to trumpeting.

But Kay might object, and this is where a second story he recounts in his piece becomes relevant, that in fact clients shouldn’t be calling the shots, or at least not these shots. As he describes it, his neighbour hired a contractor to remodel her basement, and the contractor, while competent, espoused an unappetizing world view involving Jewish involvement in the terrorist attacks of 9/11. For Kay, this was distasteful but not disqualifying – the neighbour didn’t terminate the engagement of the contractor based on his views, and Kay wouldn’t have terminated the engagement either, explaining that to challenge or even inquire about such “internal” views of the contractor would have been wrong,

much in the same way that I don’t interrogate my locksmith about his views on the niqab, or check to ensure that my local funeral director doesn’t put his kids in Little Hiawatha costumes on Halloween. That’s not how things work in a free society. You don’t threaten someone’s livelihood because he doesn’t wear the right ribbon or use the right hashtags.

Well, perhaps. I mean, I reserve the right to decide not to spend my money at businesses that espouse views I find unpalatable, and even to enthusiastically encourage others to avoid spending their money there. I’d need to know more about Kay’s views on what elements of a transaction are acceptable to take into account when making a purchasing decision and what ones aren’t.  But if I don’t want to spend money at a bar that “ironically” hangs a hammer-and-sickle flag, or you don’t want to spend money at an establishment owned by a company that makes munitions, well, we should both be entitled to fill our boots.

But at the heart of Kay’s two stories lurks a more fundamental misapprehension that colours his analysis: the assertion that the law is “just” an occupation – to reiterate Kay’s description, that  lawyers are just “fee-for-service worker[s] plying [a] trade for a salary, no different from a cook, a tailor or a journalist”. On this basis, Kay’s argument seems to be that, as a job, the legal profession’s appeals to virtues or values lie somewhere between an act of deceit and wishful thinking. But it is precisely in law’s status as a profession and as a locus of power in society that the importance of collective value-setting arises. There are lots of different characteristics that mark professions, but the core elements for this discussion are a body of specialized knowledge and subordination of the practitioner’s interests in favour of three “others”: the client, the profession, and the public.

Why is it important that professions, and particularly lawyers, adopt a collective ethic to subordinate their interests in this way? Because of the power they, as a collective, wield. Lawyers, in particular among the professions, have their thumbs on an awful lot of the levers of power in our society and over the affairs of their clients, and if they adopted a self-interested ethic, a sort of syndicalism, they could quickly become a manifest danger to the rest of society (heck, I imagine it wouldn’t be hard to find reasonable people who would be happy to argue that lawyers are already a danger to the rest of society and that’s with an ethic of interest subordination). We want to inculcate virtuous behaviour in lawyers so that their power is channeled in favour of others – hence the oaths we swear, the Rules of Professional Conduct by which we are governed, and the entire regulatory apparatus which serves, imperfectly, to constrain the activities of lawyers. In some meaningful sense, this arrangement lies at the core of the self-regulation pact by which Ontario lawyers operate – the government lets lawyers govern lawyers on the condition that lawyers act in the public interest. 

That last point hints at something worth emphasizing: the oath, the Rules and the ED&I Affirmation do not find their origins in the government, they arise from lawyers themselves. These are collective activities of lawyers, given life through the self-governing mechanisms that lawyers have themselves crafted for their collective regulation. This analogy is imperfect, and not pertinent to all aspects of lawyer regulation, but the profession is in some ways just a big club: a club that gets to set its own rules about membership, and some of those rules include promises to act in certain ways, such as ensuring access to justice, safeguarding rights and freedoms, and, now, promoting equity and diversity. I’m not quite sure from Kay’s piece why that’s an illegitimate activity for lawyers to engage in.

Of course, in part this is somewhat circular: lawyers are a profession because they call themselves a profession. But we’re not the only ones who call ourselves a profession, and others, including most importantly the government, treat us like one, and unless it’s just an accident, or one incredibly long con, there’s something meaningful in the characterization as a profession, and the undertaking of duties manifested through things like the lawyer’s oath and, now, the ED&I Affirmation. This is voluntary collective identity-formation: lawyers voluntarily adopt and profess certain norms and expectations. We could fight about what those norms or values should be and the manner in which we go about giving effect to them, but Kay seems to be objecting to the adoption of norms and values in the first place, a position which I find something just west of incomprehensible.

Kay’s core argument is that the “high-flown affectations” of lawyers are simply a “coping mechanism” for the “necessarily cynical nature of legal practice” which requires lawyer to “shade so many truths, in so many ways, that the final effect usually is indistinct from plain lying”. In short, if I take his meaning, lawyers adopt high-falutin’ poses in order to handle the fact that the duty of “zealous advocacy” requires us to lie-but-not-quite all the time. I’m not going to speculate on the empirical basis for the psychological elements of the claim, which seem entirely unfounded to me, but I’ll just note the following.

Kay opens his discussion of this point by querying: “Why is it that lawyers act in this way—and not, say, accountants or engineers?” It’s a little unclear what the “in this way” is referring to in his question – whether it’s the “collective hubris” of lawyers, the Law Society focusing on diversity in general, or the Statement of Principles and affirmation in particular. Maybe it’s some combination of all three. Whatever the precise mixture, it’s worth highlighting that at least one of two professions he cites “act in this way” for virtually any definition of “this way”. Engineers, after all, swear an oath in the secret Ritual of the Calling of an Engineer that is administered by something called the Corporation of the Seven Wardens and they wear an iron ring. The Professional Engineers of Ontario (PEO, the regulatory body for engineers) have published a Guideline on Human Rights in Professional Practice that, among other things, require engineers to “be proactive in understanding human rights issues”, “take action where appropriate to protect human rights”, “be vigilant against discrimination and harassment”, and that highlights the professional engineer’s duty to “carry out their activities in the practice of professional engineering in accordance with the laws of Ontario”, which laws are specifically flagged as including a requirement to “promote and create an environment of mutual respect” (for all of the foregoing, see page 5 of the Guideline). PEO also has an Equity and Diversity Policy and Committee (see here). So, if lawyers have fallen prey to the creeping sickness of concerns about diversity, at least we’re not alone among the professions.

As I alluded to above, this could all be mass delusion or an active con – maybe when professions do this sort of thing (oaths, affirmations, Rules, adoptions of values and principles generally) we’re trying to put one over on ourselves or others. But I would think at least some allowance should be made for the possibility that these steps are devices for striving towards genuinely held aspirational goals – they evidence intentions to achieve certain valuable goals, and in part we achieve those goals by acting in certain ways. If it’s just cynicism all the way down, and if there can be no allowance for voluntary collective action, then we might as well all just give up and resign ourselves to the lives of wage-slave drones that Kay seems to think we’re living out in any event, devoid of any capacity or desire to give effect to values and principles and commitments. But I’ll take a pass on that.

(A final point. Kay attributes the new policy to “a breed of hyper-progressive social activists who feel justified in co-opting the prerogatives of a regulatory monopoly as a means to force white-collar workers to lip-sync doctrinaire liberalism”. I support the policy. And whatever else has been said about me, “hyper-progressive social activist” doesn’t often come up.)

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