Pro Bono Goes Mainstream

By: Suzanna Lusky

May 2005, The Canadian Lawyer

Pro bono is a tradition that, until recently, occurred sporadically and according to individual effort and conscience. But over the last few years, it has gathered steam as both a worthy undertaking and an essential part of a modern, cutting-edge practice. We take a look at how it’s working, why it’s become a ‘must-do’ for many firms and where it’s headed.

One sure way to get a law firm to sit up and take notice is to appeal to its competitive culture. So when Pro Bono Law Ontario (PBLO) kicked off its three-year-old campaign to encourage firms to donate more of their time, executive director Lynn Burns made a point of singling out Osler, Hoskin & Harcourt LLP and its community law program.

Like many firms, Oslers has a long tradition of doing free legal work. But unlike most firms, it also has a tradition of approaching pro bono in an organized way. Its 20-year-old community law program and policy — which treats pro bono time as chargeable time (that goes for partners and associates) — was created, in part, by former Supreme Court of Canada justice Bertha Wilson when she was a partner.

When pro bono files come through Oslers’ door, by way of community organizations such as the Canadian Civil Liberties Association and the Kids Help Foundation, they are overseen by a committee and supported by firm management. It’s a structured approach that encourages and maximizes lawyer participation within the firm—exactly the kind of approach Burns wanted Oslers’ competitors to pay attention to.

“We applaud the firm’s effort and encourage you all to look at doing the same thing," Burns would tell managing partners and pro bono leaders at top firms over roundtable meetings, shortly after PBLO launched in January 2002. Burns quickly discovered that firms were happy to take up the challenge: “I’d meet with McCarthys and they’d ask, ‘Is Blakes doing it?’ Blakes would ask, ‘Is McCarthys doing it?’ And it was kind of any easy thing to do.”

There’s little doubt that PBLO has been instrumental in galvanizing the profession when it comes to recent pro bono initiatives. Ontario’s chief justice and PBLO advisory committee chair R. Roy McMurtry has often publicly credited Burns for her efforts. Many long-time observers also point to McMurtry and other leaders of the profession for raising the profile of pro bono over the last few years, as well as pushing to get PBLO up and running in the first place.

Optimists, including Burns and McMurtry like to think that firms are integrating pro bono into their culture primarily because they’re recognizing their responsibility to give something back to the community. But the lawyerly spirit of competition has certainly helped move pro bono up the ladder when it comes to priorities. Many leaders in the pro bono movement believe that a little friendly one-upmanship is a good thing, motivating firms to make free legal work part of mainstream law firm culture.

The seeds of that competition were sown early on in Burns’ campaign: at PBLO meetings, she would often encourage managing partners to talk to Brian G. Morgan, chair of Oslers’ community law program, about the nuts and bolts of integrating pro bono work into the structure of their firms.  Many partners wanted to know, for instance, how they might go about selling pro bono to firm management —   and to the beancounter who’d inevitably argue that providing free legal services would hurt the bottom line. On the contrary, the partners were told, pro bono had been good for the firm and good for business.

When Bay Street behemoths McCarthy Tétrault LLP and Blake, Cassels & Graydon LLP came on-board in the months to follow, exploring partnerships with community organizations through match-maker PBLO and committing to policies which counted pro bono hours as billable hours, Burns then urged other firms to bend the ear of key pro bono players at McCarthys and Blakes. “Everyone’s become sort of friendly,” says Burns of the pro bono posse. Many involved would later attend — and return inspired by— the March 2002 Pro Bono Institute annual meeting in Washington, where they learned how U.S. mega-firms organize their pro bono projects.

Leading up to PBLO’S first conference in May 2004, four firms had taken significant steps to bring structure to their previously informal pro bono systems: McCarthys, Blakes, Borden Ladner Gervais LLP and Gowling Lafleur Henderson LLP. Those that were really close to finalizing pro bono policies and programs (some had been plugging away at them for over two years), “just made sure that they let us know that [their policies] were [final] by the conference,” recalls Burns. “It was sort of like a bit of deadline.” One firm got the final OK on its policy within days of the conference and the Office of the Attorney General just squeaked in as well. Perhaps law firms anticipated a pat on the back, perhaps not. In any case, they got one.

Speaking to an audience in Toronto, Ontario Attorney General Michael J. Bryant called on firms to do everything possible to facilitate pro bono, especially for young lawyers entering the profession, and to recognize pro bono work as billable work, in some fashion. “Several firms do this already and deserve praise,” Bryant went on. “I am thinking about Oslers, McCarthys, Borden Ladner Gervais, Blakes and Gowlings, among others. If I have left you or your firm out, please forgive me. I’ll single you out in my next speech. I hope that by the time next year’s award ceremony takes place, this list has tripled or quadrupled.” Immediately following the conference, Burns received several calls from law firms asking her to help them develop pro bono policies and projects. Says Burns: “They obviously didn’t want to be left behind.”

PBLO chair and WeirFoulds LLP partner Raj Anand observes that pro bono has become a professional imperative and initiative in a way that it wasn’t before. But, Anand adds, WeirFoulds was doing pro bono work long before it became “an initiative in itself.” Well-known in the community as a public-minded firm, WeirFoulds regularly receives “cold calls” from the general public requesting free legal services.

In 2003, Anand and WeirFoulds associate Kim A. Mullin represented the Advocates’ Society pro bono in supporting a constitutional challenge by a man on social assistance unable to pay his court fees (Polewsky v. Home Hardware Stores Ltd.). In that same year, WeirFoulds acted for the Canadian Bar Association in C.U.P.E. v. Ontario (Minister of Labour) which intervened in a case that challenged the Ontario minister of labour’s exercise of discretion to appoint retired judges as chairs of interest arbitration boards under the Hospital Labour Disputes Arbitration Act.

Pro bono is an important initiative that’s picking up steam, says Anand, and there’s no doubt that there’s a healthy competition going on between law firms. “Law firms are businesses and they’re composed of professionals who are competitive and they look at what their colleagues and their competitors are doing.”

BLG co-chair and partner David W. Scott is also sure there’s a competitive instinct at play between the large firms on the pro bono front, but he thinks it’s fairly subtle. “If I hear at BLG that Torys is doing something, I’m going to take note of that,” says Scott. “That’s because there’s a lot of competition on all fronts, amongst the larger firms — on the business fronts, on their face in the community.”

Competition also has a strong institutional element, observes Scott. “Large firms might say: ‘We’re the best at A, B, C, D and E,’ and then all of a sudden pro bono initiatives become important. It’s no reason to get into it, but from the point of view of the clients that are serviced, it’s probably a good thing. Gets people off their haunches and into doing something about this.” But, he adds, there’s no question about the central motivation: “I don’t care whether it’s Blakes, or Oslers or whoever, certainly not at BLG — people are doing this because it’s the right thing to do and it’s extremely fulfilling.”

BLG’S Toronto office is working on building a partnership with the Office of the Children’s Lawyer and the firm has recently acted pro bono for H in M v. H, a case before the Supreme Court of Canada involving the definition of spouse in the Family Law Reform Act; for J.H. in M.M. v. J.H., the first same-sex divorce case in Ontario; for Jane Doe in Jane Doe v. Attorney General of Canada on the reproductive rights of same-sex couples and for intervenor Canadian Civil Liberties Association in R. v. Mann, involving the ability of a police officer to search an individual when there are no or limited grounds for such a search.

Pro bono work is now a priority for big firms, says Scott, though there are some that wouldn’t have had it on their radar screen instinctively. McCarthys partner and PBLO board director Michael E. Barrack agrees, observing that different firms have different attitudes to pro bono initiatives: “From the outside they’ll tell you that they all have the same attitude but ... it’s far more intuitive for a firm that has along history of doing pro bono.”

That said, there are many in the profession who are committed to providing free legal services and Barrack says he’s seen far more cooperation than competition among the firms. “I would say most of us who are committed to pro bono, hope that 10 years from now, it will be as institutionalized within these firms as maternity leave.”

Barrack credits McMurtry with being the driving force behind the current upswing especially after speaking at the “Ontario Pro Bono Initiative Summit,” hosted by the University of Toronto faculty of law in April 1999.  “Chief Justice McMurtry is the type of person that, when he wants something to happen in the profession, it happens.  And I think he was very conscious about raising this as an issue and finding people who would be active in making it happen.”

Another individual who was instrumental in making it happen – from the very first Ontario Pro Bono Initiative meeting in September 1998 – was Ronald J. Daniels, dean of law at the University of Toronto. For some time, the law school has been encouraging its students to seek out law firms with pro bono programs, and has persuaded other law schools in the province to tell their students to do the same.  Says McMurtry: “There’s always a great deal of competition for the best law students… For a very good law student, for a very accomplished law student, it’s a seller’ s market.  Maybe it’s a little bit too strong to say they can write their own ticket, but there’s an element of that… A lot of these young people are going to be looking for firms that have pro bono programs.”

Could law firms, then, be upping their pro bono quotient partly to be competitive? Gowlings partner and pro bono coordinator James H. Buchan says that his firm recognizes that a lot of potential new lawyers are interested in firms that have a pro bono culture. (For the past year, Gowlings has been partnered with the Aboriginal Legal Services of Toronto, advising Aboriginal artists on how to approach and negotiate the commercialization of their creative endeavours.)

Says Buchan: “When you’re at a large, commercial-oriented firm, your clients tend to be large, sophisticated business, and the work can be compartmentalized and very much a team approach on large files… And that’s great, because that’s usually the reason why [young lawyers] want to come and work in some of these large firms, because they’re interested in working on complex matters.  But in everyone’s life there is an interest in balance.”

Law firms tend to regard pro bono as a selling point to young lawyers, says WeirFoulds’ Anand.  “It’s attracting a lot of the best and brightest minds.” Part of the sales pitch he regularly gives to firms on the benefits of adopting organized pro bono programs emphasizes how it “helps with the recruitment and retention of young lawyers’ and also “helps retain clients and attract clients – quite apart form it simply being the right thing to do for lawyers who were given a lot of benefits by society and should give back to the community,” he says.

Linda M. Plumpton, a partner and member of Torys LLP’s pro bono committee in Toronto, observes similar trends in the profession: “The people firms are looking to hire want to see that the firms they may go to are giving back to the community.” Plumpton, who at the time of the interview was working pro bono on the same-sex references for the Foundation for Equal Families, adds that Toronto is starting to get up to speed with New York and other major cities that have always been more sophisticated about their approach to pro bono work, and hopes there is some competition going on so that all firms adopt a more liberal philosophy to taking on pro bono work.

Blakes partner and PBLO board director Paul B. Schabas, one of the earliest and most enthusiastic supporters of pro bono’s new formality isn’t surprised so many firms are coming on-board. “There’s always been a tradition of doing pro bono work among firms,” he says, “but it’s probably been more reactive than proactive.”

Having been involved in pro bono all of his career, Schabas has taken on many cases, including acting for the appellant in Canadian Foundation far Children, Youth and the Law v. Canada (Attorney General), the “spanking case,” which went to the Supreme Court of Canada last January. Two other pro bono leaders, WeirFoulds managing partner J. Greg Richards (for intervenor Ontario Association of Children’s Aid Societies) and McCarthys partner Barrack (for intervenor Child Welfare League of Canada) were also involved in the high-profile case. Currently Blakes is working pro bono for the Evergreen Foundation, a non-profit organization that’s rehabilitating Toronto’s Don Valley Brick Works and quarry into a park and educational facility.

Law firms are now starting to look at ways to develop a pro bono practice, observes Schabas. ‘We’re all working away at it and hopefully there’s a little bit of tension and competition about it, which is a good thing, too. You don’t want to be the last firm in, to be following all the others, saying, ‘Everybody else is doing pro bono so I guess we’d better do it.’ I don’t think any firm wants to be perceived that way. “I would hope not.”

That’s Burns’ hope as well. But given the scores of things law firms compete over — the best students, the top clients, the highest billings — PBLO’s executive director is just glad pro bono is on the radar screen and that firms care about what their competitors are doing. “If the large firms like McCarthys and Blakes are saying pro bono is an important part of their firm’s culture ... I think the other firms that aren’t doing that are going to look and say ‘Hmm, maybe we should be doing that.” It’s simply the nature of the beast.