How To Successfully Build Pro Bono Work Into Your PracticePrint
By Janice Mucalov – CBA PracticeLink – December 2011
How to Successfully Build Pro Bono Work Into Your Practice
With Canada’s legal aid system in crisis, you’re no doubt keenly aware of the increasing demand for pro bono legal work. You may already volunteer your services for free. Certainly you’re happy to help out if asked. You may even have an idea for a pro bono project to benefit a particularly cherished cause or needy organization. But how do you rally the support of fiscally-conscious partners or encourage other lawyers in the firm to step up? Where do you find the time to incorporate pro bono work into your already busy practice? Does pro bono make good business sense? Are there technology tools for easier delivery of pro bono services? And how do lawyers and firms benefit? Read on to gain perspectives on pro bono you might not have considered before.
What Counts as Pro Bono Work?
The Latin term pro bono publico means “for the public good,” and lawyers work for the public good in many ways.
Much is done on an ad hoc basis – virtually every lawyer has slashed their fees at some time for a client unable to pay the going rate.
Then there are all those lawyers involved in “invisible volunteering,” which isn’t traditionally considered pro bono work. “They help their child’s school PAC with legal issues, volunteer on the board of the Law Foundation or CBA or as a Bencher, or use their legal skills building schools in Africa,” notes Tamara Hunter, associate counsel at Davis in Vancouver.
Hunter and other Davis lawyers represented the women’s ski jumping team in their high-profile bid to be included in the 2010 Vancouver winter Olympics. The firm lost that pro bono case, even though the BC Court of Appeal ultimately agreed that excluding the women’s team was discriminatory. But women’s ski jumping will now be recognized as an Olympic sport at the 2014 games in Russia. “We lost the battle, but won the war,” reflects Hunter.
Pure Pro Bono Services
A “pure” definition of pro bono legal work is used by most of the formalized provincial pro bono law organizations in Ontario, Quebec, Saskatchewan, Alberta and BC. Access ProBono, BC’s umbrella pro bono law organization, defines pro bono as “those legal services that are provided to people and non-profit organizations of limited means without expectation of a fee.”
How Much Pro-Bono Should You Do?
Are There Authorized Pro Bono Service Providers?
Not all pro bono work is equal for insurance purposes. Depending on the province, only pro bono delivered through an authorized service provider may be insured.
The Law Society of British Columbia has arranged for non-practising, retired and part-time lawyers who do pro bono in BC to receive the same professional liability insurance coverage as full-time insured lawyers. The $5,000 deductible is also waived if you’re sued.
However, only “sanctioned services” provided through an approved program (such as Access ProBono’s roster programs and the Salvation Army BC Pro Bono Program) are covered. Doing free legal work for friends or family doesn’t qualify.
In Ontario, nearly half of lawyers in private practice provide some free legal services.
Over on the west coast, BC’s 5,400 lawyers report that they each donate an average of 47.5 hours of free legal work to people (previously unknown to them) who cannot afford to pay. Those who volunteer in summary legal advice clinics operated by BC’s Access ProBono rack up 48 hours of pro bono services a year; if they take on full responsibility for a pro bono file, they donate between 50 and 200 hours annually.
A resolution of the Canadian Bar Association calls for lawyers to strive to contribute 50 hours each per year, or 3% of billings, to pro bono legal services. This number is similiar to the standard of 50 hours a year set by the American Bar Association.
Still, it’s not enough to put Canada, which lags behind other countries on pro bono rankings, in the same league as the United States, which has a strong pro bono culture. Says Christine Pratt, a partner with Field Law in Edmonton, who sits on the board of directors for the pro bono Edmonton Community Legal Centre: “In the US, firms are better at recognizing pro bono contributions by lawyers. They have partners who do nothing but pro bono law and coordinate the pro bono work within the firm.” Average pro bono hours at the top 100 US law firms have more than doubled since 2000.
Provincial Differences in How You Can Help
Opportunities for providing pro bono services may differ, depending on where you live.
“BC has always had a community-rooted program, where solo lawyers and small firms are very much embedded with social services in small communities,” says Jamie Maclaren, Access ProBono’s executive director. The province is strong on delivering direct pro bono services.
APB operates 99 community-based legal advice clinics throughout the province, staffed by 700 volunteer lawyers. “Pro bono clinics are now more common in BC than outdoor hockey rinks, Canadian Tire stores and Boston Pizza restaurants,” Maclaren says. Lawyers at these two-hour clinics give free legal advice in 30-minute slots to low- and modest-income clients on family, criminal, immigration, debt and other matters.
As well, APB operates several roster programs, where lawyers on these lists provide full legal representation to qualifying clients screened by APB. There are rosters for civil chambers duty counsel, family law, the Federal Court of Appeal, the Court of Appeal, judicial review (appealing workers compensation and other administrative tribunal decisions), solicitor matters (helping charitable and non-profit organizations with bylaws, contracts, employment matters, etc.) and wills and estates.
For each matter, APB emails a neat package to roster lawyers, outlining the facts and circumstances of the case. Lawyers choose the scope of their services and can get up to $2,500 per case for disbursements (made available through the Law Foundation Fund).
In contrast, pro bono legal services in Ontario – and Toronto (with its large national firms), in particular – are more likely to be delivered through pro bono partnerships between firms and non-profit organizations, brokered by Pro Bono Law Ontario.
One example is the Artscape project to transform the streetcar repair barns in Toronto’s St. Clair and Christie neighbourhood into homes and businesses for artists and art organizations. McCarthy Tetrault worked for free on the financing, negotiation of long-term leases, zoning and other legal issues involved.
How are Projects Initiated?
Is Pro Bono Work a Professional Obligation?
Promoting access to justice is a key value of the legal profession. But is pro bono an obligation? The Law Societ of Alberta’s Code of Professional Conduct provides: “A lawyer should support and contribute to the profession’s efforts to make legal services available to all who require them, regardless of ability to pay.”
The commentary goes on to say that lawyers “have an obligation… to act on a pro bono basis in appropriate cases.”
However, that obligation should probably be shared on a more equitable basis. “In my experience, the largest burden of pro bono work is carried out by female and young lawyers,” says Christine Pratt of Field Law LLP’s Edmonton office. “It should be a firm obligation, not an individual lawyer’s.”
Many different hands are involved in launching a pro bono project, which may be initiated by a law firm leader, pro bono law organization, committee of partners or the charity itself.
By an Individual Lawyer
Projects are often spearheaded by individual lawyers championing specific causes. Typically a proposal is written and the firm’s executive committee makes a decision.
Sometimes one individual influences the entire pro bono orientation of a law firm.
As a summer student at Heenan Blaikie in Toronto, Ryan Teschner (now a fifth-year associate) approached the managing partner for approval to support a unique pilot project to give jobs to youth from at-risk neighbourhoods. The firm signed on. Over the next three years, it hired and trained 15 young adults to work in their office administration and IT departments on four-month internships. A few were also offered full-time jobs. The City of Toronto later expanded the highly successful program into the Partnership to Advance Youth Employment. Other law firms, banks, accounting firms and real estate management companies now also offer paid internships to youth across the city.
Later, as a first-year associate, Teschner led a review and redraft of Heenan Blaikie’s pro bono policy, which was adopted nationally. A key new point was to give full billable credit to any lawyer who works on a pro bono file.
Teschner then co-founded an initiative where the firm provides pro bono legal services to residents in the low-income neighbourhood of Kingston-Galloway. Legal aid lawyers at the Storefront, an umbrella social services agency in the area, refer cases to Heenan Blaikie. If the firm takes on a case, the client is offered full legal services for free. “So far, we’ve accepted about 18 matters involving debt negotiation, Small Claims Court, human rights claims and labour and employment issues,” says Teschner, who received the CBA Young Lawyers pro bono service award in 2008. “Heenan lawyers have probably put in over 2,000 hours of time on these files.”
On top of that, Teschner partnered with Canadian Lawyers Abroad to create and coordinate a pro bono project where Heenan’s articling students and lawyers help the Kosovo Law Center publish that country’s Supreme Court decisions.
Brokered By a Provincial Pro Bono Organization
The five large provincial pro bono law organizations – Access ProBono, Pro Bono Law Alberta, Pro Bono Law Saskatchewan, Pro Bono Law Ontario and Pro Bono Quebec – all broker partnerships between law firms and community organizations in need of pro bono legal services.
When Pro Bono Law Alberta wanted to set up a Pathways to Housing Program in an inner city Edmonton neighbourhood, Kevin Feth, who serves as its vice-president and is also a Field partner, offered the services of his firm. A partnership was brokered between Field and the health centre that operates the Pathways program.
A multi-disciplinary project, Pathways helps homeless people find housing by entering into leases with landlords and guaranteeing rental payments. Pathways’ clients also get help from addictions counsellors, social workers and psychologists.
The project was launched in May of 2010. So far, 14 lawyers have been involved, and it’s expected the firm will donate about 150 hours a year.
“The advantage to this partnership is that it makes it easy for the firm’s lawyers to get involved in pro bono,” adds Pratt. “Young lawyers with families often don’t have time to volunteer at evening clinics, but they’re able to incorporate pro bono work on a firm project into their day.”
By Law Students (Pro Bono Students Canada)
Each year, some 1,400 to 1,500 law students help up to 400 organizations across the country through Pro Bono Students Canada (PBSC). “It’s developed into a phenomenal program,” enthuses Charmaine Panko, an associate in Miller Thomson’s Saskatoon office, who is a volunteer PBSC lawyer supervisor.
Evaluating Pro Bono Cases
How should you decide which pro bono cases to accept? Firms typically consider these factors:
• Is it a worthy cause?
• Does it have legal merit? You don’t want to waste hundreds of hours on a bad case. • Is there an educational component? Will participating lawyers learn skills?
• Will it help solidify a relationship with an existing client?
• Can you afford to take the case on a pro bono basis? Has the firm had a good year, and are you financially able to donate your time?
“PBSC hooks up law students, supervised by practicing lawyers, with non-profit agencies and others for pro bono projects, intended to be completed within the school year.”
One such award-winning partnership is the Tax Court of Canada Advocacy Project. Supervised by tax lawyers at Dentons (formerly Fraser Milner Casgrain), six University of Toronto law students started representing low-income litigants before the Tax Court in the fall of 2011. The project got underway at the urging of the chief justice of the Tax Court, who was concerned by the swelling numbers of unrepresented appellants. If all goes well, the student-run project will be expanded to other Canadian cities where the Dentons firm also has offices.
Meeting Challenges in Developing and Implementing Projects
You have an idea for a pro bono project. How do you get it off the ground?
Find a Good Match
Make sure your proposed project is a good match for the firm. Is the organization’s focus of interest to the lawyers or the firm’s clients? Clients often want their lawyers to be involved in causes meaningful to them.
Davis partnered with the Vancouver branch of the Multiple Sclerosis Society of Canada more than 15 years ago after an articling student died. “She was very dedicated to pro bono work, and that partnership was set up in her memory,” says Hunter. Upon referral from the society, firm lawyers represent individual clients with MS who have been wrongfully dismissed or denied employment or insurance benefits. Davis has now donated the equivalent of $600,000 billable hours of pro bono legal services on this project.
Of Heenan Blaikie’s pro bono partnership with vulnerable residents of Toronto’s low-income Kingston-Galloway neighbourhood, Teschner says: “It has the potential to engage all the lawyers in the firm – litigation, labour and corporate law.”
Assuming there’s a good match, the firm and partner organization need to learn about each other, their respective cultures and how each makes decisions.
Getting Buy-In From Your Firm
Pro Bono Over The Course of Your Legal Career
“Lawyers have more time for pro bono work at the beginning and end of their careers,” observes Access ProBono’s Maclaren. He finds it easy to recruit young lawyers for APB at BC’s bar admission courses. “We also see many retired lawyers doing pro bono.”
It’s perhaps more difficult at the height of your career to donate free legal services. “I think you’re more likely to get hit in the pocket-book if you’re a partner than if you’re an employee associate,” comments Hunter.
Taking on a pro bono project or file can be a big commitment. “You need to think about the project from the firm’s perspective,” advises Panko. “They’re concerned you won’t meet your billables, and they’re concerned about their reputation, so they’ll want you to work on files that boost the firm’s profile.”
You might also offer your firm an escape hatch, suggests Panko. Ask: “Can we try it?” Perhaps put a specific time frame on your involvement, with a subsequent review.
It’s important to impose limitations on any pro bono project you’re considering and negotiate those upfront, advises Pratt. “The limitation we set down is that we’re mainly the project’s lawyers,” she says of Fields’ relationship with the Pathways housing program in Edmonton.
The firm should also limit its commitment to the number of cases it’s able to handle, recommends the MS Society in “A Guide to Developing a Community-Based Pro Bono Program” (see Resources at the end). For example:
The law firm will commit to 10 cases per year from start to finish.
The law firm will provide volunteer lawyers to run a legal clinic one evening a month.
At the personal level, know when to hit the pause button. “Lawyers who do pro bono tend to take on too much anyway,” notes Pratt. “It’s really important not to burn out.”
If you’re the type of person who gets emotionally involved in your work, consider pro bono files with less personal client interaction.
Maintaining Esprit de Corps
“Ongoing training is crucial to maintaining esprit de corps on a project level,” says Panko. In addition to volunteering with Pro Bono Students Canada, she’s on the Saskatchewan Children’s Advocate Office roster of volunteer lawyers, where in the past few years, she’s given independent pro bono legal advice to over 120 youth caught up in child protection proceedings. Roster lawyers hear from psychologists on stages of child development and cultural officers on aboriginal perspectives,
Sharing how your firm’s pro bono work has made a difference in people’s lives can help sustain projects within a firm. “At a recent national Miller Thomson retreat, we had a pro bono session where two lawyers talked about helping their pro bono clients and a third person spoke about the benefits from the perspective of the receiving organization,” relates Panko. “It was inspiring and encouraging.”
Recognizing the pro bono efforts of volunteer lawyers within the firm – perhaps by taking them out for lunch once a year – is always a nice idea and helps to sustain momentum.
How Firms Benefit from Pro Bono Work
Pro bono work has largely been viewed as a charitable way to contribute to individuals and communities in need. But there’s a business case to be made for getting involved in pro bono too.
Pro bono helps foster a firm’s business development efforts. “Our corporate clients want to know what kind of pro bono projects we’re doing, because they’re also contributing to the community,” says Miller Thomson’s Panko. “On some requests for proposals, one question is ‘What kind of pro bono work is your firm involved in?’ Clients want to work with like-minded firms.”
The increased visibility inherent in pro bono work has the inevitable result of getting the firm and its lawyers more work, adds Hunter. Davis’ decision to take on the women’s ski jumping case to appeal garnered the firm international attention.
For many young lawyers, a firm’s commitment to pro bono is a factor when deciding which job offer to accept. Firms that embrace pro bono work will find it easier to recruit and retain the best associates.
And don’t forget the hands-on learning, training and skill-building that lawyers gain. All free too, notes Panko. “Consider how much it costs to send a lawyer to a CLE.”
Incentivizing Pro Bono Work
The most obvious way to encourage firm lawyers to sign up for pro bono projects is to credit their pro bono work in the same way as billable hours are credited. Some firms set a ceiling of 40 or 50 pro bono hours a year. Miller Thomson offers 50 hours of billable credit annually; at Heenan Blaikie, it’s left to the individual lawyer to decide how much should be credited.
Adds Teschner: “Pro bono files shouldn’t be distinguished from billable work. If you get a win, it should be celebrated in just the same way. Support for pro bono needs to be promoted from within the firm.
How Lawyers and Firms Benefit from Pro Bono Work
The skills developed and benefits reaped by individual lawyers who work on pro bono files are many and varied.
Advocating in Small Claims Court, family court and administrative tribunals for pro bono clients gives young lawyers, especially, invaluable court room experience that they can’t otherwise get (the file size usually doesn’t justify going to court). “I was in court once a week when I signed up with the Children’s Advocate Office,” says Panko. “I got to be very comfortable in the court room, and now when I go to court for the firm, I’m much more experienced.”
Stretching Your Thinking and Abilities
Some pro bono files may push you into exciting and intellectually challenging areas.
“The women’s ski jumping team file was a very complicated Charter case,” reflects Hunter, who helped research the case and brainstorm arguments. “I learned a lot about stretching one’s thinking to come up with creative and resourceful ways to make legally-based arguments for a political cause.”
Pro bono may also expose you to collaborating on a multi-disciplinary team. Hunter and other Davis lawyers involved in the women ski jumpers’ case worked closely with a communications consultant, who also volunteered her time.
Teschner adds: “One of the most important cases I’ve worked on – and one of the most valuable experiences in my career – was a pro bono case, where we acted for the Criminal Lawyers’ Association on a Charter challenge to the freedom of expression provisions, which went all the way to the Supreme Court of Canada in 2010.”
Free training is often another benefit to signing up for pro bono work. BC’s Access ProBono holds a special “boot camp” for civil chambers and Court of Appeal volunteer roster lawyers, where judges and senior practitioners share tips on courtroom advocacy. APB is also planning a wills clinic to get lawyers in the Department of Justice up to speed, so they can volunteer in this practice area.
Client Communication and Management
Working with the disenfranchised is a great way to learn client communication and management skills than. “They normally provide a big jumble of facts, and you have to tease out and decipher the problem,” says Pratt. “You learn to listen at a better level.”
Because pro bono files are usually smaller in scope than large firm files, which can drag on for years, you get to see immediate results and the impact of touching someone’s life in a positive way.
The biggest benefit? It feels good. As Panko says: “A lot of people go into the practice of law to help others. Doing pro bono work gives you that opportunity.”
In a way, pro bono is beneficial for your mental health. “The No. 1 thing I’ve taken away from doing pro bono work is a sense of completeness,” adds Panko (who amazingly finds time for anything, given that she’s expecting her 11th child this spring). “There are lots of things I’m interested in – my family, my work, my community, my faith – and pro bono ties in with that. It’s also good modelling for my children.”
Corporate lawyers who deal with big institutional clients may get the biggest lift. To shave off a quarter percentage point from a developer’s loan probably wouldn’t make you feel warm and fuzzy. “But whether a low-income family of four can stay in their house for a few more weeks makes a huge difference to them,” says Pratt – and to make a real difference in real people’s lives can be heartwarming and revitalizing, to say the least.
The Helpful Hand of Technology
How Friendly Is Your Firm Pro Bono? How Lawyers Rate You
These days, a firm’s pro-bono track record forms part of the yard-stick that potential hires use to evaluate the firm. “In interviews, many articling students ask whether we do pro bono work,” says Hunter.
A key question is whether the firm has a pro bono policy in place.
In Saskatchewan, many law firms have become signatories to a pro bono pledge tendered by Pro Bono Law Saskatchewan. The pledge details a commitment by law firms to encourage and recognize pro bono work (through approved programs) as billable, to a ceiling of 50 hours a year. Several of Saskatchewan’s largest law firms, including McDougall Gauley, McKercher, and MacPherson Leslie & Tyerman, have signed the pledge.
Reaching Individuals in Remote Communities
How do you connect an abused woman in a remote community to a pro bono lawyer associated with a women’s support services organization in a big city? Access ProBono started Skype-based legal advice clinics. “If you’re in Bella Coola, we can set up a Skype-linked computer in a community office and connect you with a lawyer in Vancouver,” says Maclaren.
“If you’re home-bound, we do telephone advice clinics too,” he adds.
Saving Costs and Increasing Better Opportunities
At most large firms, the pro bono assignment process is inefficient. The same willing lawyers tend to be called upon or volunteer as needed. In the US, a software application called Pro Bono Manager, developed with seed funding from the Bill & Melinda Gates Foundation, helps address this. Launched by Pro Bono Net, a national non-profit in New York,
Pro Bono Manager automates the matching of lawyers with projects and causes of interest (lawyers can log on to view active pro bono opportunities and check boxes indicating their interest in different types of cases). The application also aligns pro bono programs with firm goals, streamlines management and reporting, and saves on administrative and IT costs. Mega firms such as Linklaters, Paul Weiss, Weil Gotshal, Kirkland & Ellis and Manatt, Phelps & Phillips all use Pro Bono Manager.
A couple of Ontario organizations currently use Pro Bono Net’s legal aid platforms. And several large Canadian law firms have expressed strong interest in adopting Pro Bono Manager. But PIPEDA privacy concerns mean that a parallel Pro Bono Manager product must be created in Canada, outside of the US, to serve the Canadian market.
“The challenge is: who will foot the bill to develop a parallel product in Canada?” poses Adam Licht, director of product management for Pro Bono Net and general manager for Pro Bono Manager. “The solution is for a wealthy benefactor to step up.” The estimated price tag is $50,000 to $100,000.