Column

The Purpose and Place of Pro Bono

The most recent Canadian Bar Association annual meeting just wrapped up in Halifax, and while I missed this one, I attended many previous editions (more recently called Canadian Legal Conferences) while with the CBA. 

At each CLC, I came to notice, Chief Justice Beverly McLachlin’s keynote address could always be counted on to include a call for the legal profession to do more pro bono work. I suppose the fact that this is an annual request from the chief justice indicates that it’s not generating the results she might like to see. 

But it does illustrate the fact that when members of the judiciary address the issue of access to justice (as they should), it’s all but inevitable that they’ll ask lawyers to make our services more affordable (again, as we should). That’s all fine, as far as it goes.

My problem is with classifying pro bono work as just another aspect of access to justice, which is something that everyone in the legal community now tends to do. If you’ve read even some of what I’ve written on the subject, you’ll know that A2J is important to me. But pro bono goes beyond issues of access.

Pro bono publico means “for the public good.” It represents, to my mind anyway, a class of legal services that meet two criteria:

  1. the provision of legal services for the party in question would qualify as an overall “social good,” beyond the party’s immediate interests (or alternatively, the failure to procure these services would qualify as a “social bad,” if you will); and 
  2. the party does not have the financial resources to obtain these services (including through alternative arrangements such as contingency fees).

We tend to lump pro bono together with legal aid as two measures by which people can be helped towards obtaining a lawyer’s services. But legal aid is a different animal: it’s a broad social remedy to the problem of people with legal needs who can’t afford a lawyer’s help, regardless of the merit of the party’s claim. Pro bono legal services are meant for cases with specific social merit and/or a higher social purpose, one that the lawyer is called on to advance as part of her professional responsibility. These two concepts may be in the same church, but they’re in different pews.

It seems to me that as a profession, we’re losing some of our focus on the nature and purpose of pro bono. I know of lawyers whose clients have run out of money (a common occurrence in low-income or legal aid cases) but whom they continue to represent because of their own personal sense of decency; they refer wryly to this situation as “involuntary pro bono.” I appreciate the humor, but I think it further blurs the distinction between legal aid (a social responsibility) and pro bono (a professional undertaking). Lawyers in this situation are subsidizing society’s underfunding of legal services for the poor, not taking on cases of intrinsic merit.

I recognize, believe me, that lawyers and law firms in Canada are carrying out a tremendous amount of actual pro bono work right now, and we should applaud their efforts and encourage more of the same. I just think we should glance up every now and then and re-acquaint ourselves with the bigger pro bono picture. And as it happens, I have an opportunity here for lawyers and legal organizations in Canada to do just that.

I provide a small amount of complimentary assistance to a few A2J and pro bono organizations in the US and Canada. One of those entities is Pro Bono Net, a national nonprofit based in New York, which supports the innovative and effective use of technology by the non-profit legal sector, increases participation by volunteers, and facilitates collaboration among non-profit legal organizations and advocates. Pro Bono Net took home an InnovAction Award last year for its LawHelp Interactive program, which helps low-income people quickly and easily complete essential legal forms online for free.

Another innovative PBN initiative is Pro Bono Manager™, an application developed with funding from the Bill & Melinda Gates Foundation. PBM helps law firms manage their pro bono program more efficiently and effectively by lowering lawyers’ volunteer threshold, aligning pro bono programs with firm goals, and maximizing pro bono management time. Major global firms currently using PBM include Paul Weiss, Weil Gotshal, Orrick Herrington & Sutcliffe, Ropes & Gray, Linklaters, and Kirkland & Ellis. 

Pro Bono Net wants to expand Pro Bono Manager to Canada, and has received strong expressions of interests from some of this country’s biggest firms. Here’s the problem: PIPEDA prohibits Canadian law firms from placing sensitive data in the US, so a parallel hosting environment for the product is required outside the US in a location that conforms to Canadian privacy laws.

As a nonprofit in today’s economic climate, Pro Bono Net would be hard-pressed to cover the $50,000 to $100,000 price tag this solution requires, so it’s looking for a Canadian funder to follow the lead of The Gates Foundation and finance this project. Is this your law firm, legal organization, or law foundation? If it is, or if you’d like to learn more, contact Adam Licht at Pro Bono Net. 

Pro bono is a self-imposed professional duty that crosses borders, firm types and practice areas; it’s one of the aspects of our profession of which I’m proudest. If you’re doing pro bono work, good on you; if not, today is not too late to start.

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Comments

  1. Good column, Jordan, and valid distinction between simply providing free access to any legal service for any purpose, and doing work that benefits the public. Both are worthy, of course.

    What is your authority for saying that PIPEDA prohibits Canadian law firms from placing sensitive data in the US? I know of no such prohibition, and generally speaking when cross-border transfer of personal information has come up for discussion, privacy commissioners have approved it, notably in the face of objections from e.g. B.C. public employees and staff at Lakehead University.

    As with any outsourced handling of data, the transferor is supposed to get the transferee to agree to be bound by the standards to which the transferor is subject. The prospect of the USA PATRIOT Act overriding such an agreement has not – so far as I recall – led a commissioner to disallow or criticize an otherwise acceptable transfer.

    Am I misunderstanding your point? Have I overlooked some (recent) law?

  2. Great column, Jordan. I’m finishing up my own Slaw column that touches upon similar issues of professional responsibility and access to justice. Your insight should get me over the hump.

    For what it’s worth, we at Access Pro Bono BC take a slightly different view concerning what qualifies as pro bono legal service and how it differs from legal aid. The translation of pro bono publico from Latin is indeed “for the public good”, but we believe that the public good is often furthered in pursuing a party’s immediate interests. When, for example, a very poor person is facing an eviction for standard yet disputed reasons, society benefits if that person is not left homeless and further upwardly challenged. Similarly, if a pro bono lawyer can help to compel a fair custody arrangement for low-income parents going through divorce, then society benefits from the more stable and productive social relationships. Also, if pro bono legal advice helps someone to better understand the litigation process and the merit of their claim, then society benefits from the streamlining or abandonment of at least one case.

    We also hear the “involuntary pro bono” remarks, but in practice we perceive all bona fide pro bono cases as having intrinsic merit. This is almost guaranteed by the fact that lawyers (at least in our system) select their pro bono cases on a strictly voluntary basis.

    Finally, we understand but flinch at the notion that pro bono legal services subsidize government’s under-funding of legal services for the poor. We are the first to admit that pro bono legal services do relatively little to alleviate the present crisis in access to justice. They help out people (and thus society) here and there, but there remain thousands of effectively invisible people who are left to their own limited devices in confronting critical legal problems. Our governments have made the very conscious decision to forsake such people, and we don’t think that ebbs and flows in pro bono legal service have real influence on that policy. We simply occupy ourselves with serving the critical legal needs of such people as much as our considerable professional goodwill allows.

    Anyway, I appreciate the opportunity to applaud the pro bono efforts of our profession and to vent a little. Now I’ve got to finish my column!