Like a Lawyer Looks

My friend Moya, a litigation partner at a Big Law firm, generously agreed to let me share a recent anecdote. She had logged on for a video deposition a little early. A male executive, working with the opposing party and whom she did not know, was online too. He asked if Moya was the court reporter.

“No,” she answered, “I’m counsel for X Corporation.”

“Oh,” said the male executive. “You don’t look like a lawyer.”

Moya, who radiates excellence and professionalism like a sun, also happens to be a 30-something blonde woman – which is the only information the male executive had gleaned in two Zoom seconds before he spoke his assessment. She told me this story casually, as one may describe annoying summer mosquitoes or an irritating plumbing issue. When she saw outsized shock register on my face, she called bullshit.

“You can’t tell me you are surprised,” she said plainly. “This happens all the time; I can’t spare the energy to be surprised every time. That would be exhausting.”

Of course, my performative dismay was well-intentioned bullshit. Her anecdote was not new or incomprehensible. Looking like a lawyer looks is a concept rooted in past realities about the legal industry. We have confused a certain appearance and demeanor with functionality, for no rational reason but ease and habit.

Today’s rapidly shifting legal marketplace reveals no standardization of how a lawyer looks. The social background, expected mannerisms and cultural touchstones that once defined the profession created a single vision of lawyer in our collective imagination - but in reality that has been only one type among many for decades now.

Indeed, the amorphous idea of institutional bias is well-captured by the question: Who looks like a lawyer looks?

Because, of course, the correct answer is: nobody. Or everybody. Every lawyer looks like a lawyer. The real goal of diversity policy in the legal profession is, ultimately, automatic recognition of this truth. The subversion of inaccurate perceptions will unlock value throughout the system.

In my jurisdiction, the Law Society of Ontario licenses and determines who is a lawyer, and from Toronto to Timmins; Ottawa to Oshawa; Sauble Beach to Sault St.-Marie, all lawyers are, officially, the same. Same obligations, same professional standards, same requirements to be current and be knowledgeable.

And in every city, every town, every hamlet, there are lawyers, fine lawyers, who have the classic appearance and manner that many people imagine is normal for a lawyer – how a lawyer should be. These lawyers don’t do anything negative to covet or hoard that impression – it just is.

But then there are also lawyers who are not quite what the traditional image of Canadian lawyer depicts. And for many of those lawyers, that stilted perception becomes an additional barrier to doing good work.

Before going further, I must speak with my whole chest to proclaim love for my whole tribe, which is all lawyers. All lawyers face hurdles. All lawyers have upswings and down days, and all lawyers know in their marrow the special pressures of being the one to whom people look to Get It Right. Clients, cases, finances. Deadlines, dead-ends, conflicts. All lawyers carry the Trial Bag of the Soul.

But because of that lawyer archetype, those who don’t look like lawyers look have undeniable extra weight in the sack. Unnecessary, unfair stones, brought on nothing but that out-of-date perception and, maybe, fear. So, navigating the terrain of a legal practice becomes more strenuous for, say, Black lawyers. More complicated for brown lawyers. For Asian lawyers, for Indigenous lawyers, for lawyers with turbans or with hijabs or with accents. Harder for queer lawyers, harder for non-binary lawyers, harder for trans lawyers. Harder for people with disabilities. Harder for women, harder for women, harder for women.

I’ll give a personal example. And, look, I’m no hard-luck case. I’ve had more than my fair share of blessings and breaks. I’ve had great teachers and I like to think I’ve worked hard, too. I’ve got no Slumdog Millionaire tale to tell you about my brown-lawyer-ness. But perhaps that makes me a good demonstration of why this ill-perception, and its resultant weight, disadvantage the profession as a whole.

Let’s take the modern trope of a person of colour in a professional setting looking around a meeting table and seeing only white faces. I’ve been a brown lawyer on Bay Street since 2001. That’s happened to me a lot. A lot. Especially when I was junior. Truly, I was unbothered, never made an issue of it, never sweat it. There were occasional times when someone assumed I was delivering a package or coming to fix IT issues and raised an eyebrow when I sat down. But I cannot point to an incident when anyone overtly discriminated against me on the basis of race, not once. So no problem, right? Wrong.

Even in the least intrusive situation, I would notice the colour disparity. How could I not? I’d calculate it, think about whether it had meaning or no meaning, re-adjust… And right there, that was a minute of my time wasted. Then I wondered whether anyone else noticed, or cared, or thought that I was special, in a good way or a bad way. Another minute gone. And I felt both anger and shame about noticing at all. Was it all in my head? Did this make me weak? Just like that – a third minute, evaporated, debating whether it mattered that I did not look like a lawyer looked.

So, minutes of my focused legal mind, wasted. Not contributed to finding a solution or working diligently through strategy. Minutes and momentum lost that could have helped the enterprise, fueled mentorship, sparked innovation.

And this was the ambient experience of an extroverted, upper middle-class, cis-gender, able-bodied, straight man who was born in Canada. I probably represent the low-impact situation. The apparentness of my difference wasn't a focus for me. Just a few extra rocks for the load.

But for many lawyers, these signals and scenarios crash down like boulders, or create permanent anxiety about landslides. Lawyers already uncertain of their place in the profession can absorb these moments as huge and as career-defining. Imagine how much of their productive time and quality control is sacrificed to fighting an obvious misperception – that your women-ness or Black-ness speaks some inherent truth about a limited capacity to understand and apply the law - latent in the fabric of your environment. Does it worm its way into institutional habits around work assignment? Are they pre-judging your instincts as an effective advocate? Do they assume because you are blonde and youthful and female that you cannot handle the pressure of a commercial transaction?

In an industry driven by time, the material impact on the profession denying diversity is, as a whole, massive.

And therein lies the rub. The entire legal market improves if we eliminate irrelevant barriers and allow all lawyers to focus and act with confidence. We gain appreciation of impactful alternative approaches to problem-solving We increase productivity and innovation by tapping internal resources in people. We grow the profession by capturing value lost to the lawyer myth. Or, put more plainly, value lost unproductive, uninformative, reality-skewing, civility-warping stereotypes of what a lawyer is or is not.

Every person called to the bar has not only the right but the responsibility to practice to their full, fiercest capacity. Free to be their authentic selves while they argue, negotiate, write and roar. Every lawyer serves the rule of law. Every lawyer struggles and strives to help work the engines of the system. Those are the traits that drive what a lawyer should be. Not haircuts or pigments or symbols of class – but action, deeds, effort. That is true meritocracy. The whole legal system will gain efficiency and acceleration from removal of the invisible weight pressed down on all of use by ancient, outdated lawyer mythology.

The pursuit of inclusion in the legal profession is about a system fix to assumptions about who should be a lawyer. Indeed, it always bugs me when we refer to “diverse lawyers”. A person is not diverse. Systems and institutions are diverse when they have all kinds of people.

The future is relentless. Policies of inclusion are not an imposition of artificiality. They are an acknowledgement of reality! They strive for an appreciation for the evolution of our profession that is not only inevitable, but is occurring. Inclusion is simply the revelation of a new meritocracy.

Every lawyer matters. Every lawyer adds more. And every lawyer looks like a lawyer looks.

• Awanish Sinha is a partner in the Litigation Department and Co-Lead, Public Sector, at McCarthy Tétrault LLP.