Support and encourage — don’t make it mandatory

It was a tough choice not to write about the Supreme Court of Canada’s decision denying Stephen Harper’s appointment of Justice Marc Nadon to the top court. It has so many juicy elements: politics, Quebec’s unique role, the Constitution, the quality of legal drafting, good and evil (well maybe not, but maybe yes). But others, and I mean practically every pundit in the country who knows how to spell Supreme Court of Canada, has had their say, so I’ll move on.

So let’s talk about pro bono since we’ve dedicated a large part of this issue of Canadian Lawyer to it. It all started last year after a lunchtime chat with Pro Bono Students Canada’s Nikki Gershbain who planted the idea of doing some kind of survey looking at the pro bono work Canadian lawyers are involved in. Apparently it had never been done before. Some months and a bit of research later, writer Charlotte Santry proposed two different surveys: one for law firms to examine how they treated pro bono activity (see the smashing chart) and the other asking individual lawyers about their pro bono experiences.

While we didn’t get every law firm in Canada to respond to the first survey, a respectable number came through and shared their information. It’s notoriously difficult to get law firms here to open up, so I applaud the firms that made the effort and shared statistics on the number of tracked pro bono hours their associates and partners do as well as how the firm treats its pro bono activities.
Hopefully seeing what others are doing will inspire firms to look at what they’re doing and, down the road, share that information when we poll the profession again.

As expected, the debate over pro bono versus legal aid was a large part of the discussion resulting from the survey of lawyers. But as one respondent pointed out, whether governments increase or decrease budgets for legal aid, there will always be areas of the law never covered leaving a hole in access to justice but also offering opportunities for practitioners to get involved in their communities in new and different ways. More than half of the survey respondents said they feel they have a duty to provide pro bono legal services.

Anecdotally — and this is from conversations I’ve had with lawyers over many, many years — pro bono work is often the most memorable part of what they do. That’s true even if it’s not marquee cases going to the Supreme Court but simply doing “garden-variety” quick hits for low-income people.

I see a couple of trends in the profession that have taken hold over the last few years. The first is that law students are being brought in to the profession with a sense of social commitment to public interest and social justice work. Some law schools are making it mandatory for students to participate in such activities to graduate and others are helping to support and provide students with those opportunities. Simply, this means the next generation of lawyers already has the mindset of using their legal training for the greater good.

The other trend is an increase in the number of public sector and in-house counsel who are doing pro bono. Individual lawyers are finding ways of using their skills to help non-profit groups or stepping out into different practice areas to work in local legal clinics. As well, the Canadian Corporate Counsel Association has recently formed a pro bono committee that will be looking at issues such as insurance requirements for in-house lawyers who want to do pro bono. Federal Crown attorneys, who have been hamstrung from doing volunteer legal work, now are also able to participate in three pilot projects that will allow them to volunteer for approved activities (screened by the Department of Justice to minimize conflicts) at legal clinics in Vancouver, Edmonton, and Ottawa.

There is a lot of enthusiasm in the profession to do pro bono and those who are keen should be supported and encouraged by their firms and colleagues. But as the overwhelming results of our survey show: law societies should never make pro bono mandatory.

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