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equity's sake "I was a solid performer and I had the senior-level skills and expertise [in IP, pharmaceuticals, and biotechnology] that they wanted to build their profile in these practice areas." LaCalamita's counsel — employment lawyer Malcolm MacKillop, of Shields O'Donnell MacKillop LLP, and equity lawyer Mary Eberts — are basing their claim on rule 5.04 of the Law Society of Upper Canada's Rules of Professional Conduct, which notes a lawyer's "special responsibility . . . to honour the obligation not to discriminate on the grounds of race, ances- try, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code). . . ." MacKillop says: "Rule 5 particularly applies to the legal pro- fession, and has never been litigated. Is a court willing to en- force the implied term in the Rules of Professional Conduct?" This is not the first charge of sex discrimination at a major Canadian law firm; at least two other large Bay Street firms are reported to have had complaints made against them but qui- etly settled out of court. And the issue of retention of women in the practice of law has become increasingly prominent in the last decade, with law societies striking task forces to study the issue, and releasing reports and recommendations. "In my opinion, this type of litigation is going to advance the interests of women lawyers across the country," says MacKillop, in demonstrating "the failure to break down systemic barriers." On a warm summer afternoon, flanked by her lawyers, Di- ane LaCalamita meets with Canadian Lawyer for an exclusive interview. Her story, she says, begins with her family back- ground: the granddaughter of Italian immigrants to Canada, the daughter of a photographer father and a trailblazing phar- macist mother. LaCalamita excelled academically, and after studying life sciences at the University of Toronto she discov- ered intellectual property in law school. Following graduation and completion of her articles at then-IP firm Sim Hughes Dimock, she earned an LLM from the University of Western Ontario, specializing in IP and information technology law. Her career then led to another IP boutique, Deeth Williams Wall LLP, then to Aird & Berlis LLP. Around 2002, McCarthy Tétrault was starting to build an IP sub-litigation group and invited her to join. "I had a good reputation in the bar and in the field for at least 10 years," says LaCalamita. "I was a solid performer and I had the senior-level skills and expertise [in IP, pharmaceuticals, and biotechnology] that they wanted to build their profile in these practice areas." She chose McCa- rthys over other firms for the opportunity "to be in on the — DIANE LACALAMITA ground floor" of this IP sub-litigation group. But her expectations weren't met at the new firm. Hired as counsel in March 2003, LaCalamita says she understood she would be allowed to continue a combined solicitor/litigation practice, and that she would be recommended and considered for equity partnership commencing January 2004. Neither, she claims, turned out to be the case. Three years later, having been promoted to income but not equity partner, she was let go. Mc- Carthy Tétrault paid her $200,000 in severance. LaCalamita, who is currently not working but looking for a new position, had been earning $300,000 a year and is now seeking $12 mil- lion in damages. In its statement of defence, McCarthys denies LaCalamita was promised she would be able to practise law as both a solicitor and a barrister, or that she would be made an equity partner within one year of being made an income partner. "Admission to equity partnership requires 'enthusiastic reception' by the part- ners of the firm," and the plaintiff "never performed at the level required for admission to equity partnership," says the statement of defence, citing the plaintiff 's inability to meet deadlines or the minimum expectation for billable hours, and her poor judgment as a litigator. McCarthys is represented by Terrence O'Sullivan and Michael Sims of Lax O'Sullivan Scott LLP. Neither side's allegations have been proven in court. MacKil- lop says he expects the case will go to trial sometime in 2009. "We're going to be pressing the case fairly hard in terms of get- ting this in front of a judge in a timely way," he says. The next step will be the document production process. But the issues that have been brought up by the case continue to haunt the profession. The retention and promotion of wom- en is "an institutional challenge, and I think everyone is work- ing sincerely, but not hard enough, to deal with it," says Julie Hannaford, a family law practitioner who was an equity partner with Borden Ladner Gervais LLP for 12 years before launching her own firm, J.K. Hannaford Barristers, in July 2006. Female lawyers are still not given the same opportunity to shine as their male colleagues, Hannaford contends. At BLG, "I was practising in an area that wasn't a core area, [and] com- bined with fact that I was a woman," she says she felt she was losing rather than gaining respect over time. "When you start to feel marginalized, you begin to act the way you feel people perceive you." www. C ANADIAN Law ye rmag.com OC T OBER 2008 39