Building the right legal team for public interest litigation

Building the right legal team for public interest litigation
This summer, Pivot Legal Society represented a group of homeless people from Abbotsford, B.C., at the British Columbia Supreme Court in a groundbreaking lawsuit challenging the constitutionality of city bylaws that have endangered their lives. Never before had a group of homeless Canadians been able to challenge the constitutionality of how they are treated and displaced by government authorities or police. It would’ve been impossible without the support of pro bono counsel.

Taking place over six weeks and relying on expert testimony as well as testimonies from a dozen homeless people, this was the largest and most complex trial our organization had ever run. With only five lawyers on staff, however, we had to rely heavily on pro bono counsel, led by David Wotherspoon at Fasken Martineau DuMoulin, to take on and help manage this demanding trial that included analysis of several sections of the Charter of Rights and Freedoms.

Pivot has had other cases that resulted in lengthy trials, unexpected pre-trial applications and motions, and multiple appeals requiring hundreds of counsel hours.

For example, our challenge to Canada’s prostitution laws resulted in a pre-trial issue being appealed all the way to the Supreme Court of Canada. This important public interest case was only possible because of the more than 15 pro bono lawyers who contributed their time and expertise over the years the case was making its way through the courts.

These lawyers, and the more than 120 other co-counsel we have worked with on other cases, have brought incredible skill, commitment, and insight to our litigation. There are many different reasons for their decision to get involved with Pivot, but one common feature is a passion for social justice and a desire to make the world a better place.

For many, pro bono work is a wonderful way to enhance their practice, give back to the community, and build relationships with like-minded lawyers. Whether volunteering for five hours or 500 hours, there are meaningful opportunities for litigators and solicitors, those new to the practice and those already retired to work on the issues they care deeply about.

Pivot has worked with lawyers who have given just a few hours of their time, but those few hours were an essential ingredient to our success. We have also had volunteer lawyers who worked with us consistently for more than a decade. In both cases, many lawyers have told me that their work with Pivot has been a life-changing experience.

Through these relationships, we’ve learned incredibly valuable lessons on how to make pro bono work rewarding for everyone involved.

Before engaging in pro bono work, it’s important that those volunteering ensure they have all of the information they need to understand the nature of the file and what is being asked of them and their firm.

For example, if working on an intervention, the amount of work is fairly predictable. However, when acting for a party in a case that is going to trial or on appeal, it is important to talk to the human rights organization about the various ways the case may unfold.

It is, of course, impossible to anticipate all of the twists and turns in litigation, but it is important to be realistic about the number of pro bono hours and other resources that will be required as part of the commitment.

It’s critical to have a clear retainer that outlines the relationship between pro bono counsel, the human rights organization, and the client.

In some cases, pro bono counsel will be acting directly for a client. The human rights organization may have one job, which is to connect the client and lawyer. Whereas at Pivot, where the focus is on complex strategic litigation, we are more likely to invite pro bono lawyers to become part of a legal team, which includes being co-counsel with Pivot staff lawyers and possibly other pro bono lawyers.

Some of our most rewarding and successful litigation has been structured in this way, but it requires thoughtful and careful co-ordination so each lawyer fully understands her or his role.

It is important to sort out who will work with the clients to get instructions, who will handle legal research, how the legal team will make decisions regarding litigation strategy, who will handle trial prep, be counsel of record, and who will ultimately argue the case.

We have tried many different arrangements and in the end it depends on the nature of the case and the lawyers who are involved. What is most important is that this issue is discussed thoroughly and realistically in advance.

Understanding the overarching law and policy reform goals of the human rights organization and understanding what other work it is doing to achieve its objectives will also shape the relationship among members of the legal team.

Being informed about the work happening outside the litigation in order to move the organization closer to its social change goals is critical. For example, will there be a public education or communications campaign that accompanies the litigation? Will media be interested and who will speak to them?

It is extremely valuable if pro bono counsel can engage other lawyers, paralegals, legal assistants, and articling students at their firm to also get involved with the pro bono work. On a major piece of litigation or legal research, the human rights organization will likely be thrilled to have more hands on deck.

Also, most legal advocacy organizations that rely on pro bono counsel have limited access to support staff. Paralegal and legal assistant support can be one of the most valuable contributions a firm can make to its pro bono files.

There are so many reasons why it’s important for law firms to give back to their community. Building a culture that recognizes and values pro bono work should be something to which every law firm aspires.

Katrina Pacey is executive director of Vancouver-based Pivot Legal Society and was recently named one of Canadian Lawyer’s 25 Most Influential . This article was prepared with the assistance of Kevin Hollett, director of communications at Pivot Legal Society.

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