Policy arguments are often flanked with name-calling like “left-wing pinkos” and “money-grubbing capitalists.” But aside from this colourful sideshow, there is another kind of more insidious, less-obvious diversion that continues to maintain the social, political, and economic power of the elites, whether they live in Toronto or Calgary or elsewhere in the country. This diversion is the discussion of delivery models of services to the poor, including the delivery of legal services.
The discussion about pro bono legal services in relation to access to justice for low-income constituencies, in particular, has developed a life, energy, and momentum of its own. It has been hived off from the discussion about legal aid and has entered the boardroom discussions of attraction and retention of top legal talent, protection of the profession, and professional ethics.
While it is important to discuss all of these things, I am not sure this development is one that can deliver on the promise of pro bono publico — in the public good — as the term promises, especially in light of the current access-to-justice crisis. I wonder if all of the energy, or at least some of it, could be put to better use in advocating for more and better legal aid.
In Robert Granfield and Lynn Mather’s Private Lawyers and the Public Interest, the former president of the American Law and Society Association, Richard L. Abel, talks about the different forms of delivery mechanisms of services, including legal services, to the poor. He describes four delivery mechanisms: the state (legal aid), the market (private lawyers), philanthropy (pro bono legal services), and self-help (self-representation, educational materials, and web sites).
In societies where people mostly consume what they produce, such as subsistence farming economies, goods and services not produced at home are acquired through bartering.
In market economies, things work differently. Prior to the 20th century, the poor received goods and services they could not afford largely through philanthropy, such as soup kitchens and charity hospitals. After the Great Depression and the Second World War, the British welfare state marginalized the charity model and took on the obligation to help the poor. This model was used throughout western societies to provide services to the poor such as health care, education, food, housing, transportation, pensions, unemployment insurance, culture and recreation, childcare, and communication.
The provision of legal services by the state was part of this wave. Abel noted an ebb and flow between the delivery mechanisms. In the case of legal services, as contributions to legal aid declined, the interest in pro bono increased.
The experience in Canada has been largely similar, including the increased investments into legal aid and then the negative reaction to these investments resulting in a reduction of government contributions to these programs, including elimination of the Court Challenges Program.
At a recent panel discussion on pro bono legal services in Ottawa, all of the panellists — including non-governmental organizations, small firms, and large firms — agreed that access to justice is an important issue, that it is important to fund legal aid, that there are a number of problems with legal aid, but as a cause, only the Canadian Bar Association was actively championing advocacy in this area. There appeared to be agreement that not enough advocacy was being done to support legal aid. There was also agreement that there are a number of problems with pro bono legal services.
The rise in pro bono is attributed to a number of factors. There is certainly a need for affordable legal services. Demand outstrips supply. In addition, young people are encouraged to do volunteer “good works” and make their resumés more competitive. Large law firms, with a number of institutional clients, are looking for ways to attract and retain top talent by offering the possibility of doing “meaningful work” for real people in need. Law firms are also aware that lawyers cannot simply ignore the unmet legal needs of the poor and middle class without risking their own self-regulated monopoly.
Smaller law firms appear to have more flexibility in the way they approach pro bono work. They can “Robin Hood” their practice by reducing fees in some cases because they have other clients who can afford to pay more. This was the model used prior to the creation of legal aid in the 1970s. With the urbanization of law and the movement towards large law firms with standard hourly billing rates, this flexibility is lost.
Large firms need to create other kinds of pro bono models and policies that fit the new corporate entity. They encounter the unique problem of not having access to people who cannot afford legal services; hence the arrival of provincial pro bono brokers such as Access Pro Bono B.C. and Pro Bono Law Ontario. These brokers are beginning to eclipse smaller NGOs whose traditional role was to find pro bono lawyers to help clients and work on projects. An additional problem is the issue of rules relating to conflict of interest.
The charity model must put the volunteer at the centre of process, because without the volunteer, the system will not run. Pro bono legal services cannot guarantee the quality of legal services offered. It cannot offer consistency and expertise in relation to problems regularly encountered by the poor. It is not organized to deliver services across the country, although it can certainly do a bit of good for a few.
A state-organized delivery of services can develop policies countrywide, albeit with co-operation between the provinces, which in Canada is no small feat. It can put the rights holder at the centre of the process, tailoring delivery mechanisms and specific expertise to the needs.
Considering all of the problems that one encounters now with the new pro bono movement, and the huge amount of energy required to surmount them, one has to ask if it would not be a better investment to return to working on convincing government to reinvest in legal aid.
It may be a wiser strategy to keep up the good fight, even though it may be falling on deaf ears at the moment, and to invest in pro bono just enough to keep the issue of access to justice alive in order to promote the development of leadership and capitalize on opportunities that may present themselves in the future to provide access to justice for all.
Sonya Nigam is the executive director of the Human Rights Research and Education Centre at the University of Ottawa. She can be reached at [email protected].