ON KNIGHTS, GENTLEMEN, AND FIGHTING FOR WHAT YOU BELIEVE IN

Written by Molly Churchill.

“[B]ear in mind that he can only maintain the high traditions of his profession by being in fact as well as in name a gentleman”

– 1920 Canadian Bar Association Code of Ethics, Canon 5(7)

When I was in fourth grade, my classmates and I had to paint portraits of ourselves as medieval characters and write accompanying stories. While most of the girls in my class painted themselves as princesses with beautiful gowns, I just didn’t see myself as a princess. I depicted myself as a knight clad in armour. The way I remember my story, “Mary Margaret” had to hide the fact that she was a girl in order to join the ranks with the other knights and fight to defend her people and values. Only at the end of the story, once she had proven her skill and gained the respect of the other knights (who, of course, were all boys – because only boys were allowed to be knights), did Mary Margaret reveal the shocking fact that she was a girl (gasp!).

I guess I had understood enough of our unit on the Middle Ages to see that it was boys (men) who got to be part of the action and fight for what they believed in, while girls (women) seemed to be relegated to the margins. And I wasn’t okay with this – it was just plain silly! I imagined myself in a role that would allow me to stand up for what I believed in in a public way, not one where I just stood around looking pretty.

Clearly, the days of knights and princesses are far behind us. Yet my time in law school has helped me appreciate the extent to which the gendered divisions that irked me as a 9-year-old girl learning about the Middle Ages are not far behind us. In our legal ethics course this year, I learned that in 1920, the Canadian Bar Association pronounced that, in order to be an ethical lawyer, one must be a gentleman.[1] Looking around my class, I realized that by 1920 standards, my cohort was in serious trouble: over 50% of us were future unethical lawyers because, as women, we certainly wouldn’t pass as gentlemen.[2]

But seriously, does this mean there were no women lawyers in 1920?

As it turns out, there were women lawyers in Canada in 1920, and I am thankful to them for starting to pave the way for women in the legal profession. A thrill runs through my body as I think how amazed they would be to attend one of our classes today, where not only would half their classmates be women, but many of their professors would be, too.

Clara Brett Martin became the first female lawyer in Canada when she was called to the bar in Ontario in 1897.[3] In the next decade, another two women followed in her footsteps in Ontario.[4] Their achievement was not treated as precedent country-wide, however. In 1906, the Law Society of New Brunswick ruled that Mabel Penery French was not fit to be called to the bar since, as a woman, she was not a “person.”[5] When French challenged this decision in court, the Supreme Court of New Brunswick upheld the Law Society’s decision and reasoning.[6] Not to be deterred, French found an ingenious way to have this ruling overturned: she purposely built up personal debt and, when sued by creditors demanding payment, created a “novel defense” and argued that she could not be sued since she was not a “person.”[7] This defense failed, but led to a reductio ad absurdum of the previous judgment that upheld the Society’s refusal to call her to the bar.[8] In 1907, New Brunswick introduced legislation ensuring that women could not be denied entry to the legal profession on the basis of gender, and French became the first woman lawyer in the province.[9] French re-lived a similar experience when she moved to British Columbia a few years later: denied by the Law Society and the courts, French was called to the bar only after legislative action by the provincial government passed in 1912.[10] Apparently, the Law Society which had refused to acknowledge Ms. French as a person now recognized her as a gentleman: the minutes of the call to the bar ceremony report “the Call and Admission of twenty gentlemen, including Mabel Penery French.”[11] Apparently my initial reaction was incorrect: even by 1920s standards, a woman can make an ethical lawyer, since women can be gentlemen, too.

Thankfully, we no longer need to pass as gentlemen to be lawyers. Being a gentleman is no longer one of the traits listed in codes of ethics or professional conduct for lawyers in Canada, but there is still work to be done. The National Association of Women Lawyers (NAWL), in their 2012 National Survey on Retention and Promotion of Women in Law Firms, found that “[w]omen still typically hold only 20% of the positions on a firm’s highest governance committee, and only 4% of firms have a woman as the firm-wide managing partner.”[12]According to a review of studies on gender and the legal profession in Canada and the U.S., “[a]n array of task force reports and scholarly articles document that many women lawyers face gender discrimination, including sexist behavior, harassment, demeaning comments, and a negative courtroom environment.”[13]

I do feel some pride thinking back to nine-year-old me, challenging gender roles by depicting myself as a medieval knight rather than a princess. That said, I wish nine-year-old me had figured out a way to change the system to fit her, rather than to change herself to fit the system by pretending to be a boy. As women about to enter the legal profession, I hope we will be able to successfully challenge discrimination and I hope our male colleagues will be working alongside us for this change. I hope we can respond in the way Mabel Penery French would have: by forcing structural change rather than bowing to the current system.

Notes.

[1]Alice Woolley, Understanding Lawyers’ Ethics in Canada, (Toronto: Lexis Nexis. 2011) at 11.

[2] According to McGill’s Enrollment Report, 52.7% of students (464 of 880) enrolled at the undergraduate level at the Faculty of Law in the Fall 2013 term identify are female. Online: http://www.mcgill.ca/es/sites/mcgill.ca.es/files/fall_2013_-_total_ft_and_pt_enrolments_by_faculty_by_degree_and_by_gender.pdf. I assume this is to mean that 52.5% of students self-identify as female, but this is not clarified in the report.

[3]Mary Jane Mossman, “The First Women Lawyers: Piecemal Progress and Circumscribed Success” (2007) 45:2 Osgoode Hall LJ 379 at 384.

[4]“Mabel French” (2013), online: Archives and Special Collections, University of New Brunswick <https://unbarchivesandspecialcollections.wikispaces.com/Mabel+French>

[5]Wesley Pue, The Story of Legal Education in British Columbia (1995), ch 9 online: University of British Columbia Faculty of Law <http://faculty.law.ubc.ca/Pue/historybook/school09>

[6]Ibid.

[7]Ibid.

[8]Ibid.

[9]Ibid.

[10]Ibid.

[11]Mossman, supra note 3 at 385, quoting from Alfred Watts, History of the Legal Profession in British Columbia (1869-1904) (Vancouver: Law Society of British Columbia, 1984).

[12]National Association of Women Lawyers and the NAWL Foundation, Press Release, “National Association of Women Lawyers and NAWL Foundation Releases Seventh Annual Survey” (October 22, 2012) online: <http://www.nawl.org/p/cm/ld/fid=82>

[13]Fiona Kay and Elizabeth Gorman, “Women in the Legal Profession” (2008) 4 Annual Review of Law and Social Science 299 at 305.