Pro bono RISING

Lawyers who undertake pro bono legal work attest to the deep satisfaction it provides and point out its status as a long-standing professional obligation. And for those who’d like to get involved, a whole new range of opportunities, organizations and business rationales are opening up.

Every second Wednesday, John-Paul Boyd spends the afternoon at a Vancouver family law clinic organized by the Salvation Army and staffed by volunteer lawyers. The clinic’s clients can’t afford legal services and aren’t covered by legal aid, either because they’re among the working poor or because their legal problem isn’t a covered legal aid service.

"I really love it," says the Aaron MacGregor Gordon & Daykin associate, a past winner of the CBA Young Lawyers’ Conference Pro Bono Award. "There’s a feeling that you are making an actual, bona fide contribution to someone’s life. I really enjoy it. I look forward to the clinics."

"There’s more to lawyering than just billable hours," adds Fred McElman, a Fredericton-based partner at Stewart McKelvey who is committed to doing pro bono work. "If you run across someone with an important question that impacts on their life in a significant way … and they wouldn’t otherwise have access to legal services, I think it is our duty as lawyers and to the larger community [to act]."

Boyd and McElman are just two of the many lawyers across Canada who volunteer their time, efforts and legal training in support of people, groups or causes that need legal assistance but can’t afford it. Their actions represent the best of the legal profession, continuing the centuries-old tradition of lawyers who act pro bono publico — for the public good.

Esther Lardent, President and CEO of the Pro Bono Institute at Georgetown University in Washington, D.C., says pro bono work is personally important to the lawyers who practise it. "For many people, making the world a better place, making the world a fairer place … satisfies an important need for them," says the world-renowned guru of pro bono.

Today, the coordination of pro bono efforts is more sophisticated than ever, thanks in large part to organizations that help people in need connect with willing lawyers.

Having a third party broker the lawyer-client connection makes it easier for everyone, says Lynn Burns, Executive Director of Pro Bono Law Ontario, whose organization creates programs to make those connections. "We have the ability to be more creative and to develop initiatives that are more of a hand-up than a hand-out."

Her two-year-old organization has been encouraging Ontario law firms, especially those with more than 50 lawyers, to develop policies and take on pro bono activities. For example:

• providing representation to special-needs or expelled students to ensure their rights are defended at a fair hearing;

• advising Aboriginal artists on intellectual property and trademark issues; and

• assisting low-income citizens with the drafting of wills and power-of-attorney documents.

While lawyers in larger centers may sometimes find it difficult to connect with potential pro bono clients, those in smaller towns and rural areas often have no such problem. There, small-firm lawyers and sole practitioners are recognized and accessible. Traditionally, many have done high levels of pro bono work, accepting their professional responsibility to help members of their community who need, but cannot afford, their assistance.

Peter Radley of Cunningham Swan in Kingston, Ontario, was a sole practitioner for 38 years before joining a larger firm this year. His "habit of offering free legal advice" reflects the practice of many small-town and rural lawyers, who might all echo his words — "As long as I’ve been in private practice, I have always, from time to time, done things pro bono."

Shifting ground

While pro bono has long been a tradition within the Bar, there are signs of changes and new directions taking shape. In addition to Pro Bono Law Ontario, Pro Bono Law of British Columbia in Vancouver is also helping to connect clients with lawyers under the pro bono banner.

"We are picking up on an organized and coordinated approach" to providing pro bono service, says Pat Pitsula, part-time Executive Director of Pro Bono Law of B.C. She sees "better matching between communities and individuals who need pro bono and the lawyers and law firms who want to do it."

Pitsula is excited to be at the edge of a movement that she believes is only going to grow. "Five years from now, this will be an incredibly different scene … with increasing pressure on law firms to be more socially responsible."

Lardent notes that in the United States, Model Rules of Professional Conduct call upon every lawyer to undertake pro bono work. As recently as ten years ago, that was the main focus for American lawyers to take on such cases: as a moral and ethical obligation. "We didn’t talk about the business case for pro bono," she says.

But now that the legal profession has become more business-like and business-oriented, that has changed. Lardent has published papers making the business case for pro bono, setting out to prove to anyone who has doubts that it is in their "enlightened self-interest" to take on some pro bono work.

For instance, in studying the pro bono activities of American law firms, researchers found an interesting pattern. Law firms that had strong pro bono programs seemed resistant to downturns in the economy, and their lawyers were generally more loyal and more patient during tougher times.

Pitsula adds that Canadian law firms are starting to catch the same wave that firms in the United Kingdom, Australia and the United States are already riding. She notes that every law firm that made American Lawyer magazine’s Top 50 Most Profitable Firms list last year has a "vibrant pro bono policy."

Michael Barrack, a litigation partner with McCarthy Tétrault LLP in Toronto, has been developing a "pro bono business case" document for Pro Bono Law Ontario. "People make a mistake when they don’t separate the financial case from the business case," says Barrack.

He points out that "law firms spend tons of money on advertising, knowledge management, training and education, the development and support of students and associates … artwork and office furniture." All this expense, he notes, goes towards the goal of creating a "superior professional environment."

Barrack points out that when it comes to these type of long-term intangible investments, law firms "don’t expect to see a one-to-one correlation between the expenditure and an immediate financial return." He suggests that the same approach should be taken with pro bono work.

Pro bono activities may not be directly and immediately linked to bottom-line profitability, but proponents say that many benefits accrue to a law firm with a policy in place and a willingness to do some free work for low-income clients and the community organizations that support them. Some of the law practice benefits of pro bono work include:

Recruitment and Retention — Lynn Burns notes that having a strong pro bono program attracts the "best and brightest" lawyers and is "good for team-building.… When a firm is working on a signature project together, it’s good for morale."

Lardent adds that pro bono work can "spark innovation and excitement." And Barrack notes these kinds of cases can instill a new enthusiasm for the practice of law and give a boost to lawyers.

Training and experience — Pro bono work often provides articling students and new associates with opportunities to run meetings with clients and to develop and prepare a case independently, under the supervision of a senior member of the firm. This is valuable training and gives young lawyers the satisfaction of working on socially relevant matters.

But the benefits aren’t limited just to new practitioners. Veteran commercial litigator Jim Lebo of McLennan Ross in Calgary has taken three pro bono files to the Supreme Court. He values the "chance to enjoy that experience" and acknowledges that he can now tell clients he has argued cases at the Supreme Court level.

Structured efforts

Make your own pro bono policy This spring, the CBA distributed an Emerging Professional Issues Initiative e-mail (EPIIgram) providing readers with a sample pro bono policy and encouraging firms to use the sample to create their own tailor-made policy. It’s also available at CBA PracticeLink. Looking for more on pro bono? Try these sources: • Pro Bono Law British Columbia  www.probonoNet.bc.ca • Salvation Army program (British Columbia)  www.probono.ca • Edmonton Centre for Equal Justice www.ecej.ca • Calgary Legal Guidance www.clg.ab.ca  • Pro Bono Law Ontario • Volunteer Lawyers Service (Ontario)  www.volunteerlawyers.org

Perhaps just as significant is a real change in the way law firms are managing pro bono files. Whereas a few years ago only a few firms had formal pro bono policies, today more firms have explicit, written policies and pro bono committees or coordinators to implement them.

For a growing number of firms, taking a pro bono case is no longer a random act of kindness, but a structured policy decision based on the firm’s goals and interests. Lawyers are encouraged to do some pro bono work, and supporting their efforts is an important part of firm culture.

One of the pioneering firms in this regard is Toronto-based Osler Hoskin & Harcourt LLP, which has operated a Community Law Program for the past 25 years. Osler Hoskin is "proactive" in encouraging partners, associates and students to take on pro bono work, says Brian Morgan, who has chaired the Community Law Program for the last 15 years.

The firm requires lawyers to record time spent on a pro bono file, and credits them for it in the same way they would a chargeable file. Pro bono hours are assigned to a "phantom partner," and lawyers are not penalized for providing legal services on a pro bono basis, so long as prior approval has been obtained.

Osler’s pro bono policy states that "our free legal assistance to these clients strengthens our community," and lists many reasons for the program, including:

• It provides great personal and professional satisfaction to the lawyers involved.

• It enhances the firm’s image in the community.

• It strengthens recruitment of top associates who are interested in the social contribution of law.

• It provides excellent training opportunities for young lawyers.

• It enhances associate morale by involving young lawyers in socially meaningful causes and providing them with opportunities to conduct their own matters with their own clients.

• It provides opportunities for mature lawyers, approaching retirement, to be involved with community groups that assist disadvantaged individuals.

Although the Community Law Program was not a "deciding factor" for Melissa Barnett when she joined the firm, the Ottawa-based corporate litigation associate, called to the Bar in 2002, said it did "influence her decision." She appreciates that pro bono files provide "an excellent opportunity to get some experience, especially if you work in a large firm," adding that some of her colleagues "always, always have one on the go."

Morgan believes that the future will see increasing partnerships between law firms and particular community organizations — Osler is currently assisting the HIV/AIDS Clinic in Toronto — and between law firms and some of their paying clients, when they work together on charitable projects.

Innovative approaches to pro bono work do appear to be growing within the legal profession. Barrack predicts that "ten years from now, the business case for pro bono wouldn’t be an interesting article … it will be part of the landscape, part of what makes lawyers lawyers."

Those who now do pro bono work find that whatever the organizational and business sides of the equation, it’s the deep and inherent satisfaction that really keeps them involved — what Esther Lardent calls "the joys of pro bono."

"For many people, making the world a better place, making the world a fairer place … satisfies an important need for them," adds Lardent: "It feels right.

"Barrack concludes: "When you use your human talent for something that is altruistic, it feels good."

Drawing a clear line Pro bono work does not replace the need for legal aid funding. As important and valuable as pro bono programs are, there is one point that lawyers, especially those with the CBA’s Standing Committee on Pro Bono, want to make very clear: pro bono is no substitute for adequate government funding of legal aid plans. "It is not our intention, nor is it the intent of the numerous pro bono bodies across the country, to let the government off the hook with respect to very proper obligations to legal aid," says John Jones, a lawyer with Christianson and Christianson in Portage La Prairie, Manitoba, and Chair of the CBA’s committee. "Pro bono cannot possibly fill the need, on a number of fronts." Government commitments to legal aid have waned over the past decade, both in terms of a substantial decrease in contributions to legal aid funding and a diminished public role in legal aid policy development. Against this backdrop, Jones understands that some lawyers might see pro bono campaigns as a sort of Trojan horse, a move to displace legal aid with volunteerism. Avvy Go, director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, worries that as the CBA works to formalize pro bono services, governments will be able "to shift from a legal obligation to promote access to justice to the moral obligation on lawyers to provide charity." She fears lawmakers could take advantage of expanded pro bono work to divert attention from the chronic problems of legal aid, which include: income eligibility criteria that have remained largely unchanged for more than a decade, inefficient use of scarce resources, cancellation of public funding for whole areas of legal aid, and a steadily rising demand for services. Charlottetown family lawyer and former CBA President Daphne Dumont, a long-time pro bono supporter who also chairs the CBA’s Standing Committee on Legal Aid, echoes this concern. She says there’s a view among some senior government officials that lawyers should solve the legal aid funding problem by simply providing the work for free, with those in need of help doing their part through "self-representation." This attitude, Dumont points out, fails to consider the health-care, welfare and other costs of failing to provide adequate publicly funded legal aid. She says the CBA has been fundraising for a challenge that could see the Bar take the federal government to court to create a national legal aid standard. But Angela Longo, president and CEO of Legal Aid Ontario, thinks these fears might be overblown. "There is always going to be some underlying concern that you can’t replace legal aid with pro bono work, and we always have to be cognizant of that." She says, however, that the Ontario government has been clear in its policy of promoting pro bono work that complements legal aid, rather than replacing it." New Ontario Attorney General Michael Bryant "has been very supportive of robust legal aid, so I am taking his word for it," she says. "But I’m still fighting for more money," particularly to meet the growing demand for legal aid in family clinics, criminal, prison and refugee law. Longo says a key challenge is the declining participation of the private Bar, with the number of private lawyers accepting legal aid cases down by nearly 30% over the past five years. This is despite two modest increases to the hourly rates paid to lawyers, but they followed sharp reductions in funding that began in the mid-1990s — the impact of the 1996 reductions are still being felt. Jones says it’s up to lawyers, through the CBA, to keep governments from offloading some or all of the costs of legal aid onto pro bono lawyers. "We try to make it abundantly clear that this is not appropriate," he says. "Health problems should not be solved by doctors doing free operations. Proper health care is a societal responsibility, and proper legal protection to those who can’t afford it is also a societal responsibility." Still, Jones adds, deep cuts to family law legal aid funding presume heavily upon the good nature of many lawyers, many of whom just can’t say no. "If they see poor people falling through the cracks they have to help," he says. "I know of many lawyers providing services for free, even at trial." – Michael Lewis

Research on this story provided by Vicki Schmolka, a lawyer based in Kingston, Ontario. Her practice focus is plain-language writing.

Illustration: Marc Mongeau