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Increasing Access to Justice Is Not a Zero-Sum Game

You probably know that pro bono publico translates as “for the public good”. But you may not know that some justice system stakeholders view doing the public good as not much good at all. Generally lauded by judges and leaders of the profession, the long-term systemic value of pro bono legal service is a matter of limited but uneasy debate in the community of reformers, progressives and do-gooders dedicated to the concept of equal access to justice for everyone. Within that virtuous circle, not everyone is convinced of pro bono’s net benefit to the mission.

The typical knock against pro bono legal service is that it removes or at least alleviates the pressure on government to properly fund legal aid and other worthwhile access to justice initiatives. Some suppose that governments would have been motivated by great shame and political pressure to bolster legal aid if not for the proliferation of organized pro bono legal services around unmet legal needs. The misplaced charity of pro bono lawyers, they seem to suggest, is one of few things standing between austerity-era governments and a social conscience.

There are mild currents of this perspective in the Canadian Bar Association Access to Justice Committee’s recent summary report entitled, Reaching Equal Justice: An Invitation to Envision and to Act. In a section on why change is necessary, the report states that there are few concrete statistics on the number of pro bono lawyers and the clients they serve, and the value of pro bono contributions overall (statements that are demonstrably false with respect to organized pro bono legal services). The report identifies the growing emphasis on pro bono as a problem inasmuch as it diverts attention from the inadequacies of the justice system. And most peculiarly, the report calls for all lawyers to volunteer their legal services at some point in their career by 2020, but then sees volunteer lawyers mostly comprising those “who do not provide people-centred law services” by 2025. The ostensible vision is of volunteer lawyers serving organizations and things out of kindness, and paid lawyers serving actual people out of duty.

The Committee’s coolness toward pro bono is perhaps best revealed by where it leaves the practice unmentioned. In its various calls to initial action (e.g. championing legal aid in letters to politicians, encouraging friends to conduct preventative legal health checks, adding the report’s logo to emails), the Committee never encourages lawyers to actually provide free legal services to those who desperately need them. The calls to action are instead geared toward developing justice system innovations and applying direct and indirect political pressure on governments to better facilitate if not provide equal access to justice by 2030. But 16 years is a long time to place hope before active compassion, to talk and merely “hold the terrible silence at bay”.

If equal access to justice is the end-goal, there is nothing more active, available and existential to the mission than pro bono legal service (I admit to some personal bias here as the Executive Director of the Access Pro Bono Society of BC). Beautifully simple in its structure and application, pro bono provides the most nimble and direct means for lawyers to facilitate access to justice by affirming it and living it, and not simply by talking about it. Pro bono takes the 30th floor office to meet the street; it lands lofty rhetoric in grounded action. It brings the officers to the battlefield to witness the real toll of unequal access to justice. It has done so for centuries.

Did you know that BC’s legal aid system began as a pro bono system? It’s true. Back in the early 1970s, legal aid in BC emerged from the benevolent spirit of pro bono and its service to the poor. Since then, pro bono has too often been viewed as a sub-standard draw on the significance and value of legal aid. This has resulted in little integration between the two forms of free legal service (though many lawyers will tell you that their legal aid work is self-subsidized by pro bono work).

Thankfully, new opportunities for greater integration between pro bono and legal aid are emerging. The professional endorsement of limited scope retainers has eliminated the restrictive “full service” or “no service” dichotomy. This has created endless possibilities for collaborative public-private programs adaptable to urban and rural areas. There is organized referral capacity for legal aid overflow in the form of pro bono and “low-bono” lawyers willing to carry on where legal aid lawyers have reached their mandatory limits. A legal aid lawyer, a pro bono lawyer (maybe the same lawyer), and their common client can work together to craft an efficient and neatly spliced series of unbundled tasks that takes advantage of their various proficiencies and capacities.

It is high time that legal aid and pro bono are seen as mutually supportive systems, and not simply as Plan A and Plan B. It is beyond high time that we harness the growing spirit of volunteerism among lawyers rather than sequester it to the far corners of legal practice. Pro bono is a good thing. More measured integration of pro bono into the legal aid system benefits low-income people by offering a wider and more adaptive range of free legal services. It also benefits the profession by increasing the affordability of legal services, and by providing solid moral ground for the argument that governments should increase legal aid funding. By virtue of pro bono, the profession can speak less from a position of perceived self-interest around self-regulation, and more from a position of knowledge, understanding and investment in the mission to increase access to justice. After all, increasing access to justice is not a zero-sum game.

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Comments

  1. I fully support Jamie’s argument that pro bono service is an integral part of A2J, in part because it ensures that lawyers take moral and practical responsibility for more than those who can afford to pay for their services in a traditional model (ie very few people). I argued recently in the ABA Dispute Resolution magazine that without taking this type of responsibility, the profession risks losing legitimacy (and its stock is already low) in the public culture.

    However my research study of SRLs suggests some worrying aspects to the pro bono culture which we should be willing to explore. One is the perceived lack of commitment and even competence among some who receive pro bono services from lawyers. We still often think of pro bono as something that young lawyers do to “cut their teeth” whereas as those who are more experienced will tell you, lawyers need a special and highly developed set of skills to do this work. Summary legal advice sessions are a perfect example of this. It is very complex to deliver useful assistance in 30 or 45 minutes, not something that young lawyers would be ‘practising” with. Another apparent problem raised by the study – as well as the continuing intake we are doing with SRLs who contact the project (www.representing-yourself.com) – is the promise of assistance – as in yes, you are eligible for our pro bono services – followed by an inability to actually find a lawyer to provide service.

    Pro bono is critical to the service of the profession, no argument. I just think – and have no doubt Jamie thinks this also – we should start to explore how we can do it better.

  2. Why didn’t anyone support the vision of integrating the two services (B.C. Legal Aid and Pro Bono) back in the 1970’s? Back then the focus was on politicizing “access to justice” to ensuring that the government would fund legal services to those that needed it but could not afford it. In turn, lawyers willingly became paid employees of the government. I think a more correct idiom to describe this situation would be “zero-some gain”. Julie has outlined some key areas where access to pro bono services could be improved. It seems to me to be a very good place to start the pro bono journey “back to the future”.

  3. Those are informed and absolutely valid comments, Julie. Thanks for them.

    Pro bono has its obvious deficiencies, and hence it can only serve as a small part of any grand solution to limited and unequal A2J. In my mind (and I tried to convey this idea in the latter half of this column), pro bono serves people best when it is used as a service that adds front-end or back-end value to legal aid, “low bono” or even deliberate self-representation.

    I think the summary legal advice model works well even in 30 minute increments (the brevity is necessary to serve immense demand while keeping wait-times reasonable) to inform people of their legal rights and to point them in the right direction. These are things that young lawyers and indeed law students can do quite well.

    In my weekly experience dispensing employment law advice at a local pro bono clinic, people are largely unaware of their basic rights and how to pursue them. The same people are often disappointed when they learn that I can’t represent them (lawyers can only do so much free work after all), but that is a challenge for pro bono providers in expectation management. It is often also a challenge in grounding unrealistic notions.

    But, yes, until pro bono achieves some wonderful state of full saturation among lawyers, the lawyer supply side of the equation will lead to spotty service at times. Where critical legal needs are concerned, this is where legal aid needs to step in. We obviously don’t have to worry about too little demand.

  4. Diane– wouldn’t that be nice? I wasn’t alive then, but I’m a big fan of the communitarian values that emerged from the 60s hippie movement. Peace, love and happiness, maaan.

    Alas, social welfare policies aren’t as popular as they used to be.

  5. Jamie-I think you summed up one of the challenges in offering pro bono services; working for free definitely has its limits. I agree that in promoting the “right to” lexicon, the dove-tailing of pro bono /legal aid services might articulate a long-term perspective, in helping to solve the access to justice problem, only if a critical mass of lawyers buys into the plan. Your dedication and commitment to helping others is to be commended.
    The fitness industry has been successful in promoting the “can-do” spirit and “bottom-line” results (personal and financial) because the evaluation of benefits are concrete, tangible and quantifiable. Does a legal advice model work this way? How do you evaluate the process and outcomes?
    Throughout history social content has been challenged sometimes peacefully but, often radically and violently and the 1960’s was no exception. I wish it was all love, peace, happiness and groovy music.
    My point is that many non-profit organizations can support social welfare policies because they are receiving revenue from the government. The gov’t action to decentralizing these services, by downloading them into the community, creates a win-win situation for the government if they decide to reduce or stop funding these organizations. At this point, popularity of these social welfare policies will be the least of our worries.
    Time is always changing and so is this game.

  6. David at Johnston

    I hope some insights from the 80s in the UK might help.
    A law centre in Garrat Lane, south London was denied funding as it was fairly blatantly politicised and saw campaigning politically as the best route to solving access to justice inequities. This was hot on the heels of miners strikes and frankly some very real politik action at the time. Right or wrong – the doors closed and need was more unmet than ever. I was recruited to set up a replacement service and did so. It lasted over 12 years in an oddly deprived corner of South London (Roehampton) within less than a mile of some of the most well heeled areas – but deprived, violent and ignored nonetheless.

    Local solicitors, with one notable exception, saw us as a threat to be avoided – both policically and professionally. City firms were often casting around for locations to deploy their pro bono aspirations, and always short of staff we took them at their word.

    The A2J we accomplished was very routine but vital stuff. Yes signposting usually, but specialised in its way. There were no courses in welfare law and social benefits calculations back then, but that was the root of 90% of the problem. The State was not the helper, it was the problem; they were actually the opposition as often as not in crime, family and housing issues.

    Some of the City helpers, usually articled clerks or just qualified solicitors were both useless and often shocked by what they had to deal with. The good intentions were very evident, but the gulf between mortgaging oil rigs by day and matrimonial violence by night was simply too big, let alone utter ignorance of what housing benefits were applicable to stave off evictions. Many dabbled, none stuck.

    In the UK the issue was summed up recently as ‘access to justice is not the same as access to a lawyer’ and my experience in South London reinforced that for me. Turning up as an aspirant partner with a fondness for dodgy smokes and The Doors meant you were as much use as a chocolate teapot – worse, people with less than no time had to really re do Everything you touched.

    Government funding was seen then as the solution purely because it meant we would not have to spend 30% of our time getting paid next month. Public founders hated us as we usually made their life hard by picking up their sloppy work and making sure no one actually got hurt ( however unintentionally).

    Another solution is needed now as much as then. More so, as from the limited exposure I have to the efficiency of the public sector here nowadays, things have gotten worse, not better. Unmet legal need is worse than ever, and lawyers are worse at addressing it than ever.

    My guess is it needs to look elsewhere for sustenance, and those benefactors vary enormously by country. But God bless the few who keep trying.

  7. Great piece Jamie! Thanks for your thoughts. What came to mind for me as a current law student involved with Pro Bono Students Canada is the fact that the job market for new calls has become so competitive that there is an odd tension in how students are relating to pro bono work – it seems necessary to gain “practical skills” but at the same time it’s a source of resentment (working for free while carrying massive debt that seems unlikely to be paid off soon after graduation). I’m not sure what the leadership structure of Access Pro Bono BC is, but the added irony is that debt-ridden students are often supervised and managed by paid coordinators.

    I think you’re right that pro bono is important and that it is an expression of our highest aspirations as a profession, but I challenge the notion that it’s a sustainable model for solving the access to justice problem we are facing in this country. A good analogy might be with the creation of the medicare system in Canada – doctors before universal hospital insurance provided free and low-cost services to some patients in need, but this was never going to stabilize the incredible demand for medical services. Legal services are the same. And the combination of outrageous tuition fees and a paucity of stable jobs does not bode well for the ability – or willingness – of future lawyers to support working for free, however noble the cause.

    Thanks again for your thoughtful contribution!

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