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.