Mandated or Mandatory Pro Bono

Chief Judge Looks to Pro Bono to Address Access to Justice Concerns

The Chief Judge of New York State announced that henceforth (did I really use that word?) all applicants for the New York state bar must complete 50 hours of pro bono work. Can he do this? Yes he can. In New York, as in many states, lawyers are licensed and regulated by the courts. Many state courts have delegated this power to state bar associations, but not New York state. Chief Judge Jonathan Lippman said that the new requirement was intended to provide badly-needed legal services in urgent cases like foreclosures and domestic violence. New York is the first state to enact such a rule; others may follow. Could this happen in Canada?

Dare to Dream

In an interview in the December 2011 edition of the CBA‘s magazine The National, the Governor-General reiterated the substance of his provocative remarks at the CBA’s August 2011 Legal Conference in Halifax. In the interview the GG asserted:

I would be inclined to say we should see 10 per cent of our time devoted to pro bono causes as part of our professional responsibility. The figure is about 3 per cent now.

Far be it from me to disagree with the GG, but I doubt that 3 per cent of aggregate lawyers’ time is spent on pro bono work, however broadly defined. With Ontario and 44,000 licensed lawyers docketing a conservative 1600 hours per year that makes over 70 million docketed hours. Three percent of that is over 2 million pro bono hours!

And 10%? Over 7 million pro bono hours! To put that in perspective, that would be 200 hours for every lawyer docketing 2000 hours a year. That is a lot of pro bono hours! Trust me, I know. In my brief time in private practice in California and in Toronto I spent over 10% of my time on pro bono work. I like to joke that I was developing quite a specialty in the area. It was incredibly fulfilling but not necessarily how one gets ahead in the short term.

I guess one of the perks of being GG is that one can dare to dream and maybe stir the pot a little from time to time.

Professional Responsibility: The Possibilities of Strengthening Access to Justice

I am not sure where the GG got his 3% figure from, but it’s not from Canadian sources. Unfortunately, no Canadian law societies or bar association have any rules imposing an ethical let alone a regulatory obligation on Canadian lawyers to provide legal services to those who cannot afford them. The CBA’s Code of Professional Conduct rather meekly states that

Lawyers should make legal services available to the public in an efficient and convenient manner that will command respect and confidence, and by means that are compatible with the integrity, independence and effectiveness of the profession.

(This is in chapter 14 on “Advertising, Solicitation and Making Legal Services Available”).

The Federation of Law Societies of Canada does no better. Its now-completed Model Code of Conduct states at Rule 3.01(1) that “A lawyer must make legal services available to the public efficiently and conveniently and, subject to rule 3.01(2), may offer legal services to a prospective client by any means.” The commentary states:

As a matter of access to justice, it is in keeping with the best traditions of the legal profession to provide services pro bono and to reduce or waive a fee when there is hardship or poverty or the client or prospective client would otherwise be deprived of adequate legal advice or representation. The Law Society encourages lawyers to provide public interest legal services and to support organizations that provide services to persons of limited means.

Lawyers have been arguing in court over the past decade that Access to Justice should be recognized as an unwritten constitutional principle or an actual constitutional right.

But surely a prelude to this must be that Access to Justice is part of the professional responsibility of the legal profession and of each individual lawyer?

The American Bar Association‘s Rule 6.1 Voluntary Pro Bono Publico Service provides that “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”

This rule is both declarative (“Every lawyer has a professional responsibility…”) and aspirational (“A lawyer should aspire . . .”). Yet, in Canada, we have been unable to go even this far. We should. But what if we as a profession don’t heed our own calls about Access to Justice?

Back to the Courts: Judicially-Mandated Pro Bono?

The courts may eventually step in and take radical action on the Access to Justice front. In recent years, the courts have shown greater willingness to regulate the conduct of lawyers through ordering the state to pay for counsel in isolated cases and requiring counsel to remain on the record (R. v. Cunningham, 2010 SCC 10).

Could the courts heed the GG’s call and institute a mandatory pro bono program for counsel appearing in their courts? Canadian lawyers are “officers of the court” and surely this must mean something. But could the duties as an officer of the court extend this far? Some American courts certainly think so. As part of the right to practice in some American courts, counsel must participate in court-administered pro bono programs. The Northern District of Illinois (which includes Chicago) has such a rule.

New York’s new 50 hour pro bono admission requirement will affect Canadian law students who wish to be admitted to the New York bar. Until now, Canadian law students could automatically qualify for bar admission in that state simply by writing the New York bar exam (and fulfilling the low threshold of the good character requirement). The pro bono requirement adds a new twist. It also demonstrates that Canadian lawyers and law students are increasingly subject to global regulation.

At the end of March, the Chief Justice of Ontario, the Honourable Warren K. Winkler, met with Chief Judge Lippman and was reported to have “lectured the bar about access to justice”. One wonders whether Chief Justice Winkler picked up any ideas from his American colleague.

Comments

  1. In Canada I doubt that the courts have any say over the conduct of lawyers outside the courtroom. We are officers of the court while in court, or in dealing with matters that will go to court, or that are aimed at going to court. Otherwise, not so much.

    We are governed by the Law Society of our province. In the US a lot of states have no equivalent. They have the state bar as both a regulator and an advocacy organization, so the courts have had to step in so that there is a neutral public interest body with some say over lawyers’ conduct.

    Law Societies could require pro bono, but I don’t see it in the short term. It took them years to do mandatory CLE. Nice of the GG, who has never practised law (though an admirable man of many remarkable achievements), to suggest we tithe our billings. One might ask what happens to the 40 – 50 – 60 percent of billings that go to overhead? And even tithe our own income, or equivalent, when we have the CRA taking more than a tithe, and other worthy causes than those who lack legal services knocking on our doors…

    So: encourage, yes. Set some targets for time, perhaps. But it won’t be 10%, or 5%, given the variation in lawyers’ practices and income and opportunity. We could rise to ‘aspirational’, but I don’t think any lawyer has avoided the many exhortations to do pro bono. If we don’t, it’s by choice, not for lack of opportunity or marketing.

  2. Not every US lawyer likes the NY State rule. http://www.cathygellis.com/soi/2012/05/first-thing-we-do-lets-enslave.html. “While the goal of providing legal services to the poor is laudable, this rule is anything but. Not only will it fail to truly serve the constituency it purports to benefit, but it will also result in the deprivation of legal services to even more people by ultimately raising the their costs even higher than they already are.”

  3. TheABA Journal online raises the question and gets a number of articulate comments, every one of them against mandatory pro bono. Not just self-serving or greedy, either.

    Is there any other trade, occupation or profession in Canada whose members are required to provide their services for free to appropriately worthy recipients?

  4. My core fear is that this is part of a larger trend to substitute charity for the proper provision of publicly funded essential services. Here is my comment on this as this is a matter that will undoubtedly have an adverse effect on aboriginal people given their disproportionate representation in the criminal justice system.

  5. John,

    Your comments are thoughtful as always. I know of no other profession that makes claims to both act and regulate in the public interest as strongly as we do in the legal profession. There are many large gaps between the rhetoric of lawyering and the reality: see the Barrister’s Oath in Ontario for example. Judges could order lawyers appearing before them to do pro bono. I agree they likely could not order other lawyers. There would be an obvious inequality in this. I would like to see the profession start with aspirational ethics on pro bono, at least.