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In the United States, mandatory pro bono programs already exist at more than 20 law schools, including Harvard Law School and Columbia Law School. The University of Pennsylvania Law School was considered a trailblazer when it established its 70-hour pro bono requirement in 1989, the first national law school to do so.
Arlene Finkelstein, assistant dean and executive director of the Toll Public Interest Center at Penn Law, says the requirement was “a way to promote the professional responsibility that all lawyers have to be vehicles for access to justice, in addition to a wonderful platform for students to gain practical skills and to become engaged in their communities.” She admits it was controversial at first, particularly because at the time mandatory pro bono hadn’t really caught on.
Now, almost 25 years later, the wider legal profession is jumping on board. Last year, New York Chief Judge Jonathan Lippman announced that starting in 2015, admission to the New York State bar will require lawyers to complete 50 hours of pro bono service in order to obtain a licence. “We are facing a crisis in New York and around the country,” Lippman said in an October 2012 report on the new requirement. “At a time when we are still adjusting to the realities of shrinking state coffers and reduced budgets, more and more people find themselves turning to the courts. The courts are the emergency rooms of our society — the most intractable social problems find their way to our doors in great and increasing numbers. And more and more of the people who come into our courts each day are forced to do so without a lawyer.”
Canada is facing the same problem. In her report on self-represented litigants, University of Windsor Faculty of Law professor Julie Macfarlane found that consistently 40 per cent or more of litigants in family courts across the country are not represented by a lawyer and in some civil courts that number is 70 per cent or more.
The legal profession — including law students — is starting to address the crisis. “Unfortunately lawyers charge significant fees for their services, and there are many people in our community who can’t afford to pay those fees but have pressing legal issues that need to be resolved,” says Brendan Stevens, a third-year student at the University of Toronto Faculty of Law.
Some argue it is every lawyer’s duty to help address the issue. “As a legal profession, we do have a professional responsibility to mobilize and to provide services on a free or discounted level in order to provide more access to justice,” says Jamie Maclaren, executive director of the Access Pro Bono Society of British Columbia. “In my mind, it truly is a professional responsibility. It stems from the fact that this is a self-regulating profession; we benefit as lawyers from a monopoly on legal services and in return for that we need to ensure that people do have some basic level of access to the justice system.”
By getting students to start pro bono work while they’re in law school, it increases the chance of them continuing to do it into their careers, says Maclaren. “The hope is that we’re developing a new generation of pro bono lawyers that will be really active and helpful in increasing access to justice and keeping the pro bono culture alive and well. The earlier that law students accept and understand that there’s a professional responsibility to provide some level of access to justice for people who can’t generally afford legal counsel or even access the justice system in a meaningful way the better.”
SHOULD IT BE MANDATORY?
But should pro bono work be mandatory? How can we get law students to do it without making it a requirement?
“If we create this climate where public interest and pro bono is seen as being this vital part of your legal education, students will do it,” says Nikki Gershbain, national director of Pro Bono Students Canada. The discussion shouldn’t be focused on whether or not to make public interest work mandatory, she says, instead, it should be focused on changing the culture to foster this kind of work in the law school community. “Creating a climate where public interest activities are widely available and considered to be an important part of the law school experience actually bypasses all of the negatives of mandating public service but it achieves all of the same goals,” she says.
Nathalie Des Rosiers, the new common law dean at the University of Ottawa and former general counsel of the Canadian Civil Liberties Association, agrees it shouldn’t be about making pro bono mandatory. “What is important in the context of this discussion is not to overemphasize whether [pro bono is] mandatory or not, I think we’re beyond that. I think we’re now at the stage of saying — and I would have the same reflections when we’re looking at the profession more generally — certainly I think you aim to have the largest number of people within your profession to do pro bono, the question is what are the best tools to do it to accomplish your goal. We want to move to a position that it’s not only how much pro bono you’re doing, but how well you are doing [it],” she says. “It’s not only about counting hours, but mostly about doing something meaningful that addresses serious problems.”
In Sossin’s view, public interest work is a necessary component of legal education. “If you really see [public interest work] as essential to legal education, how can you say someone could graduate who’s never taken part in this, who’s never been in the community, never given back, never had that experience of seeing law in action in that way?” he asks.
However, he admits there is a downside to making it compulsory. “I think you lose something when you make public interest or pro bono work mandatory. You lose that sense of this is being done out of a value and belief in law as a helping profession in the public interest mandate of lawyers and law schools,” he says. “A perfect system is a system in which it’s optional and 100-per-cent take-up.”
Gershbain also identifies some risks associated with forcing students to do something. “If you make it mandatory, you do run the risk of creating resentment on the part of maybe a small number of students,” she says. Stevens agrees that making it compulsory could backfire. “We’re running the risk of undermining this sense of volunteerism at the heart of public interest work …and if you force someone to do something that they don’t want to do, maybe it’ll actually decrease the likelihood of them doing it down the road.”
However, he also says sometimes you have to be forced into trying something new to realize you’re passionate about it. “Some of my most pleasant experiences have come out of me being placed in a situation that I didn’t really want to be in and then it broadens your horizons and exposes you to something that you didn’t realize you needed exposure to. By exposing people to the public interest and exposing people to how they can use their law degree in a way that helps vulnerable members of our community, the hope is that down the line they’re going to remember that experience and they’re going to remember having an impact on people, and they’ll continue to do it throughout their career.”
Gershbain points out studies have shown that if students are reached while in law school, their eyes are often opened to problems they might not otherwise have been aware of.
MANDATORY ISN’T NECESSARILY NEGATIVE
In Finkelstein’s opinion, making something mandatory isn’t necessarily a negative thing. The pro bono requirement at Penn Law has “become so embedded in the culture that it’s a part of our student life, it’s a part of our experiential opportunities for students, it’s just woven into the fabric of the law school,” she says. In fact, more than 92 per cent of Penn Law’s graduating class in 2013 exceeded the 70-hour pro bono requirement. “Pro bono can enhance every student’s legal education and can enhance every lawyer’s professional practice,” says Finkelstein.
Osgoode’s public interest requirement falls in line with the school’s emphasis on experiential learning, says Kimberley Bonnar, manager of experiential education and career development at Osgoode, the first Canadian law school to require students to participate in experiential learning in order to graduate, starting with the 2015 graduating class.
Other law schools in Canada and the U.S. are also creating more opportunities for students to get practical, hands-on experience. The Carnegie Foundation for the Advancement of Teaching’s 2007 report on legal education helped kick-start this trend after it found North American law schools were teaching students too much theory and not enough ethical and practical skills. It recommended law schools integrate legal analysis, ethics training, and practical experience into their curricula.
Bonnar says Osgoode’s public interest requirement makes the law school unique and it’s something students should consider when applying. “As an institution it gives us the ability to say both as students come in and as they go out that no one leaves Osgoode without doing work in the public interest,” she says. “And so as they enter the legal profession, they have an appreciation of what it means to hold access to justice in their hands and really make a meaningful difference.”
She recognizes, however, that a public interest requirement isn’t necessarily the right move for all law schools and there are other ways of encouraging students to get involved. “If you entwine the idea of it serving the public interest as an inherent element of the profession, then perhaps that will encourage students to seek out these opportunities on their own,” she says.
PROVIDE MEANINGFUL OPPORTUNITIES
Stevens says students will be motivated to do public interest work if there are meaningful opportunities for them at law school. “Offering students rich extracurricular opportunities will entice students to be involved regardless of whether or not it’s mandatory,” he says. “The challenge is to try to provide the most intellectually stimulating, gratifying opportunities that allow students to make an impact, and if you can provide those I don’t think you’ll have to make the requirement mandatory because students are increasingly looking for these kinds of opportunities.”
PBSC is working to develop more opportunities in mainstream areas of the law, says Gershbain, such as tax, wills and estates, and corporate non-profit, because it wants to make sure there are appealing placements available for a variety of student interests.
Bonnar says most students express an interest in doing public interest work even without requiring it. “In my experience, the vast majority of students want to give back and that’s a huge part of why they came to law school,” she says.
It also looks good on a resumé. While Sherrard Kuzz LLP managing director Rhonda Cohen says she doesn’t necessarily look for a student’s public interest experience when hiring for the firm, it doesn’t hurt to have it. “Any experience that a student has that enhances their ability to be knowledgeable, worldly, empathetic, and practical is valuable,” she says. “We want students who care about their community, who care about other people, and are prepared to get involved.”
Stevens says students will also personally gain from doing pro bono work and he highly recommends taking advantage of opportunities like PBSC. “The most surprising thing about law school is how incredible the co-curricular opportunities are. They are so meaningful and they really round out your legal education,” he says.
Gershbain emphasizes the variety of value pro bono work offers students. “First of all, it exposes students to the value of the pro bono ethic. It makes it more likely that they’ll go out into the profession prepared to make pro bono and community service a part of their everyday practice. It [also] provides law students with really important practical experiential learning opportunities while they’re in law school,” she says. “That provides them with training that in turn makes them more prepared to practise law.”
Wela Quan, a Canadian law school grad and an associate in Osler Hoskin & Harcourt LLP’s New York office, says the New York bar’s requirement will be good for U.S. law graduates since students are not required to complete articling there. Graduates are asked to pick an area of practice to work in without having done any practical legal training, she adds. Pro bono work “is an integral part of legal education because what you learn on the books and what you learn while you’re studying is so different from the actual practice, and you are missing a very, very big chunk coming out of law school not having done any actual legal work,” she says.
Quan sees the growing desire among students to do pro bono work as an overall shift taking place in the profession. “[B]y influencing and affecting students coming out of law school, future generations of lawyers will be more attuned and have more of a focus on [pro bono]. I think already the younger generation of students and people coming out of law school are very sensitive to that.”
A CHANGE IN PERCEPTION
Maclaren also predicts a change in the near future on how pro bono work is regarded in the profession. “There will be a culture shift that’s led by the newer generation of lawyers around pro bono services,” he says. “It’ll help the whole profession and give more credence and establishment to organized pro bono services.”
Older lawyers never had a system of organized pro bono services but younger lawyers and new grads are surrounded by it and therefore much more attuned to it. In fact, Maclaren says he is already seeing higher engagement levels from younger lawyers as Access Pro Bono’s sign-up rate for new and junior lawyers is much higher than senior lawyers. The law schools encouraging students to do pro bono work is definitely a contributing factor, he says, as there are more opportunities now to get involved.
Natalie Zinman, director of student programs in Gowling Lafleur Henderson LLP’s Toronto office, says the firm encourages all of its professionals to work on pro bono files, including its students whenever possible. “If students come into the practice of law having already had the benefit of doing pro bono work and seeing the value that it can provide — not only to them from a learning perspective but also to the clients that they help support — then I think that that can be very valuable,” she says.
At this year’s annual PBSC national training conference in Toronto in May, Matt Cohen, director of litigation projects at Pro Bono Law Ontario, said in order for pro bono work to be truly embraced law firms need to get onside, which is happening but at a slow pace. If students really get on board and do more public interest work, they can help create the change that is needed in the profession.