A Place for Pro Bono in the Legal Profession – PBSC National Director Offers Her InsightPrint
Charlotte Santry, Canadian Lawyers Magazine, April 7, 2014
More than half of lawyers believe the profession has a duty to provide pro bono services, according to a survey of readers across the country conducted by Canadian Lawyer. But a strong majority of respondents oppose making pro bono work mandatory, and 60 per cent feel lawyers offering free legal services could discourage governments from providing sufficient legal aid funding.
The findings highlight the complexity of the debate around where pro bono services fit in in the quest to achieve greater access to justice, as well as raising broader questions around professional ethics in the legal industry.
Pro bono publico is a Latin phrase meaning “for the good of the people,” and the desire to help others appears to be a major motivation for the lawyers and firms that provide these services. Out of 532 respondents, 81 per cent said they worked on pro bono files to give back to their communities and 67 per cent did so to improve access to justice. This was followed by other motivating factors including the desire to support worthy causes (63 per cent), the chance to enhance their professional profiles (28 per cent), the opportunity to fulfil passions and interests (25 per cent), the challenge of working with diverse clients (14 per cent), the opportunity to learn about a new practice area (13 per cent), and the prestige associated with certain cases (seven per cent).
Successful pro bono cases have helped to overturn injustices and raise important public policy issues. Last December, Dentons Canada LLP secured victory for someone who was unlawfully arrested in Toronto during the 2010 G20 clashes while walking to a church service. Lawyers are scheduled to represent two more complainants in upcoming G20 police disciplinary hearings. Koch Thornton LLP represented the Canadian Civil Liberties Association in the inquest of the death of Ashley Smith, the 19-year-old who strangled herself in a segregation cell. More than 700 hours were devoted to the case — a “significant undertaking” for the three-lawyer firm, says co-founder Allison Thornton.
However, the Canadian Bar Association and others caution against over-reliance on pro bono services to fill gaps left by declining levels of legal aid funding, as the demand for legal services has steadily grown. Melina Buckley, chairwoman of the Canadian Bar Association’s access to justice committee, told Legal Feeds blog last August the organization had “a problem with it [pro bono] being used to fill the gaps,” adding: “We don’t think it’s sustainable to build a system like a food bank.”
Many lawyers seem to share these misgivings. Asked whether pro bono services can disincentivize governments from providing sufficient legal aid funding, the majority (60 per cent) felt they could, while a quarter disagreed and the remainder did not know.
On the survey, a corporate/commercial lawyer working for a full-service regional firm in Alberta said he feared pro bono work gave the provincial government “yet another reason to shirk its legal aid responsibilities.” In contrast, a real estate lawyer from Manitoba doubted legal aid would ever be available for certain types of services lawyers are willing to do pro bono, while another respondent argued: “Stopping pro bono work is not going to make them any more willing to pay for legal aid.”
The strength of feeling on both sides of the debate may provide pause for thought among those who want Canada to follow in the footsteps of New York state, which by 2015 will require anyone sitting its bar exam to show they have completed 50 hours of pro bono work. One in five survey respondents believed lawyers should have a mandatory obligation to provide pro bono services, while 73 per cent disagreed and seven per cent were unsure. A quarter felt lawyers should be forced to report the hours spent on pro bono work each year, two-thirds disagreed, and nine per cent did not know.
“Charity should be a voluntary matter, not something pushed into one’s face,” said a family lawyer from Ontario. A labour and employment lawyer from a full-service Ontario firm stated: “To make it mandatory will mean shoddy work without compassion.” Others pointed out other professions were not forced to work for free, while some suggested a mandatory obligation would be unfair to small firms. One said lawyers who chose not to perform pro bono services could instead donate to a central “access to justice fund.”
There is also uncertainty over the definition of pro bono. Should it include legal aid work that is not fully compensated, clients who fail to deliver agreed fees, and volunteering on the boards of non-profits?
One of the major criticisms of the New York scheme has been the way it places the burden for helping vulnerable parties on debt-laden law students and recent graduates with sky-high billable hour targets, rather than on senior, better-paid members of the profession. Mandatory pro bono at law schools could also end up “imposing a burden on students who have other pressing obligations, including those who are in school part time, have families, [or] need to work part time to pay for law school,” says Nikki Gershbain, national director of Pro Bono Students Canada.
But she points out, as a self-regulating profession, the legal industry must find a way to serve those who would otherwise be excluded: “If legal fees are so out of reach that the average person doesn’t have access to the justice system, we have an obligation to fill gaps in the system by requiring the profession to step up to the plate,” she says.
Of course, there are often sound business reasons for taking on pro bono work and, in general, survey respondents said their firms encouraged it. Just over a fifth said their firm “strongly encouraged” pro bono work and a third said it was encouraged “to some extent.” A much smaller proportion — eight per cent — said their firm actively discouraged it, and a third said it was neither encouraged nor discouraged.
There are ways firms can make it easier for their lawyers to do pro bono work, such as taking it into account when calculating billable hours targets. Many larger firms do this, according to information supplied to Canadian Lawyer (see page 32), though it seems to be less common for partners than associates.
The amount of time lawyers spend on pro bono files varies significantly between firms, from an annual 12 to 24 hours a year for associates and 10 to 120 hours for partners, the data shows.
Lucas Lung, a partner with Lerners LLP, was permitted to devote up to 40 per cent of his practice to pro bono files in his first year at the firm. It helps when firms have speedy processes for approving pro bono requests, he says. At a previous firm, his request to work on an immigration pro bono case took so long to be approved “the guy just disappeared,” says Lung.
Publicity is undoubtedly one potential business benefit to take into account. Toronto litigator Kevin Toyne found himself at the centre of a media storm after taking on the case involving Darwin the monkey, who gained international fame in 2012 after being found wandering around a local IKEA parking lot wearing a shearling coat. The Brauti Thorning Zibarras LLP partner helped Story Book Farm Primate Sanctuary successfully fight off a lawsuit (or rather custody battle) launched by Darwin’s former owner, real estate lawyer Yasmin Nakhuda.
While the case took longer and used more resources than Toyne foresaw, it has unexpectedly opened up a new area of business, he says. “Animal law has become part of my practice,” he explains. “Two years ago if someone had said that to me I’d have left and called them an idiot.” Not that he took on the case with a view to gaining publicity; he was already involved with the sanctuary after meeting the owner at a vegetarian food festival, he says.
Firms that allow their lawyers to take up pro bono causes may also find it easier to attract and retain ambitious people eager to work on worthy or high-profile files. Pro bono work can be an enticing prospect for lawyers at the beginning of their careers, says Allison Fenske, an associate at Thompson Dorfman Sweatman LLP. Fenske won a Manitoba Bar Association award for her work with Winnipeg Harvest, a non-profit food distribution centre. This involved co-writing a paper on the legal right to food with the Public Interest Law Centre, and is part of an ongoing project. “As a junior lawyer I’ve been able to get experience that I wouldn’t have otherwise got,” she says. “I got to work with another legal organization [the Public Interest Law Centre]; it’s not very often you get a chance to team up with lawyers outside the office and people who you’re used to seeing across the aisle in the courtroom.” Working with Fenske on the project was Public Interest Law Centre executive director Byron Williams and Joelle Pastora Sala, who was a law student when the paper was being written and is now articling at PILC. Williams and Fenske provided strategic advice to Winnipeg Harvest on their advocacy efforts regarding the right to food.
Many experienced lawyers equally relish the challenge of fighting a cause for the greater good. Overall, just over a third of respondents said they had a “largely positive” pro bono experience and 26 per cent said it was “fairly positive.” Only 13 per cent reported an overall negative experience, and the remainder had either not carried out pro bono work or had neutral experiences.
Georgialee Lang, a sole practitioner in British Columbia and California, acted as an intervener in the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford, which ruled Canada’s prostitution laws violated the Charter. Working on the case was “challenging and rewarding,” says Lang. Part of the attraction was the chance to learn new things. “I’m a family law lawyer and know nothing about criminal law,” she explains. “The learning curve was very steep. I had to study prostitution laws all around the world.”
Most of the survey respondents said they avoid files that involve working outside of their usual practice areas. Thirty-seven per cent said they never take on such cases, while 26 per cent said they “rarely” did. However, 22 per cent said they “sometimes” did and 12 per cent did “often.” A small minority (two per cent) said they always worked outside their usual practice area. Of those who worked beyond their usual practice areas, less than half (41 per cent) said they had not received any extra development or skills training. “My training is self-directed and usually involves panicked leafing through CLE practice manuals and a lot of Google searches,” admitted a B.C.-based lawyer. Others sometimes sought advice from other lawyers in their firm.
Is there a risk of lawyers accidentally harming clients by straying away from their comfort zones? The CBA’s 2012 paper, “Tension at the Border: Pro Bono and Legal Aid,” notes it “may well impact the quality of legal help offered.” However, it adds: “One response is that the underlying rationale of pro bono is that the good should not be the enemy of the best, in other words, that some legal help is better than none at all.”
It’s important for lawyers to reflect on the value they can realistically add to a pro bono file, says Lung. For example, one case he worked on involved 23 interveners and several Bay Street firms.
“There were lots of conference calls between counsel to make sure we weren’t saying the same thing. The important thing is whether we’re actually making a contribution,” Lung argues. There’s a danger some firms view pro bono work as a “profile-building” exercise rather than a chance to help the community.
The majority (85 per cent) of lawyers at national law firms seemed to share Lung’s cynical view, believing pro bono work was primarily viewed by their organization as a chance to raise its profile.
This came before the desire to give back to the community, which 76 per cent said was behind their firm’s interest in pro bono work. Nearly three-quarters said their firm saw pro bono as a recruitment and retention tool.
But there are also countless examples of pro bono work that fly below the radar. In 2005, following a period of illness, Lang opened a legal clinic in eastside Vancouver, which she ran at the same time as running a busy practice and managing three other lawyers. “I was so grateful for my health and what I had, it was a way to give back,” she says. Most of her clients were poor or suffered from mental illnesses.
In Karn v. The Queen, Patrick Lindsay and Locklyn Price, lawyers at Borden Ladner Gervais LLP in Calgary, successfully overturned the Canada Revenue Agency’s position that denied a mother a tax deduction for tuition paid on behalf of her learning-disabled son. The CRA’s stance affects hundreds of families, says Lindsay, but “most of the parents just end up walking away from it, which is unfortunate because it’s clearly allowed under the law.” The decision set a helpful precedent, and the pair have since helped to settle around 10 other appeals.
There are certain factors lawyers may wish to consider before throwing themselves into a pro bono case. Firstly, it is important not to underestimate the resources that may be needed. Fighting the Karn case took “an awful lot of time,” involving expert witnesses and medical practitioners, says Lindsay. For smaller firms with little or no financial cushioning, the costs may become a strain.
In the IKEA monkey case, the court awarded costs; Toyne will not reveal how much of this was returned to the firm, but says he subsidized significant expenses out of his own pocket.
One respondent recommended asking the client to carry out “as much of the groundwork and photocopying as possible,” to reduce disbursements. “They feel more involved and empowered, and less of your time is used,” said the New Brunswick lawyer.
Many other survey respondents flagged that pro bono clients can be just as demanding as those who are paying for legal services, and in some cases more so. Despite this, less than half of respondents said they screen potential pro bono clients as thoroughly as fully paying clients, although some said organizations such as Pro Bono Law Ontario did the screening on their behalf before referring individuals.
The largest proportion of respondents (39 per cent) took on cases after being approached directly by clients on an ad hoc basis, but 16 per cent worked with partner organizations and local community networks, and seven per cent sourced clients through family and friends. “There are times when people are severely mentally ill or don’t understand [what you’re telling them]. They can cause you so much grief . . . you have to be wary of that,” advises Lang. She was approached by a man at her church who was schizophrenic and wanted some pro bono advice about his father’s will. “I recognized that he was so unstable and volatile that I really couldn’t do much,” says Lang. She took a look at the will and recommended he contact the executor. But the man wanted more, and ended up reporting her to her law society for not returning his calls. The complaint was swiftly dismissed, but Lang says the episode illustrates the need to be cautious when deciding who to help.
An immigration lawyer from Ontario recommended setting out the cost of the waived fees in a pro bono retainer agreement for clients “so they understand the value of what they are getting.”
Judging by the responses, there are reasons to be wary of pro bono work in some cases, but also a plethora of compelling reasons to carry it out. No provincial law society forces pro bono onto lawyers, though the CBA wants all lawyers to volunteer their services at some point in their career, and the Federation of Law Societies of Canada sees it as a professional duty. The federation’s model code of conduct states: “As a matter of access to justice, it is in keeping with the best traditions of the legal profession to provide services pro bono and to reduce or waive a fee when there is hardship or poverty or the client or prospective client would otherwise be deprived of adequate legal advice or representation.”
Whether this ethical duty becomes a formal obligation may well depend on the profession’s response to the growing access to justice problem that is already widely seen as a crisis.
Canadian Lawyer’s survey was comprised of readers from every corner of the country, half of whom were from Ontario, followed by Alberta (18 per cent), and British Columbia (13 per cent). The majority worked in solo practice or boutiques, closely followed by full-service regional law firms, then in-house legal departments, national firms, and global firms. Overall, 81 per cent said they provide pro bono services, and the majority of those lawyers had taken on more than five files in the past year.
Read about lawyers involved in pro bono work in the article Pro Bono Case Studies.
Click here for full article
Click here to download PDF