Private pro bono clinics, law school clinics and clinics run by legal aid organizations are the first point of face-to-face contact with the justice system for most people who don’t have a law firm on personal retainer. They are an essential source of initial guidance for people who have just discovered they have a legal problem, and provide a critical understanding of the lay of the land and the range of likely outcomes; for people who can’t afford counsel and don’t qualify for legal aid, they provide an indispensable source of ongoing advice and information. In my experience, almost every clinic client who has an identifiable, resolvable legal problem gets something positive out of their time with a lawyer at a clinic, even if the news is all bad.
(To give some idea of the need for these clinics, in 2013 British Columbia’s Access Pro Bono served more than 7,000 people through its 90-odd clinics throughout British Columbia, and a total of more than 22,000 individuals and organizations when referrals and free legal information is included. In 2010, Calgary Legal Guidance served more than 7,000 people, and the Edmonton Community Legal Centre served more than 10,000 people, of whom 1,400 saw a volunteer lawyer. In the 2012-2013 fiscal year, Legal Aid Alberta provided legal advice and brief services to 12,800 low-income Albertans; in the same year, the Legal Services Society of BC, the legal aid provider in that province, provided 143,200 legal advice “services,” although this doesn’t tell you much about the number of clients served. In the 2011-2012 fiscal year, Legal Aid Ontario provided summary legal advice on more than 23,000 occasions through 60 legal clinics located throughout the province.)
Legal clinics generally only offer advice, referrals and help filling out court forms. They rarely offer legal representation, except when the individual lawyer is willing and able to take a case on. Law school clinics offer short meetings with students working under the guidance of a lawyer and often screen by income and usually have areas, like family law, in which they will not provide services. The clinics run by legal aid programs provide short meetings with lawyers, usually ranging from 20 to 30 minutes, and clients are screened for eligibility, always by income and sometimes by issue. Private pro bono clinics also usually have some form of income cap, but those caps are usually significantly higher than those of legal aid as private clinics are designed to help the people who don’t qualify for legal aid but can’t afford a lawyer. As a result, private pro bono clinics fulfill a critically important role in providing access to justice.
If there’s no private pro bono clinic in your community, think about setting one up. The beauty of pro bono clinics is that they make it very, very easy for lawyers to give their time. All volunteer lawyers need to be able to do is commit to giving one or two hours of their time once every one or two months. The files they take are in and out, with no strings or other commitments attached; unlike their for-profit files, these files are closed the moment the lawyer leaves the clinic. No work beyond the one or two hours is required. As a result, it’s fairly easy to appeal to lawyers’ sense of civic duty and recruit a healthy roster of volunteers. As of this 2014, for example, Access Pro Bono had a whopping 406 lawyers volunteering at its clinics and another 78 in its family law roster program.
Here’s what you need to do to set up a private pro bono clinic, in roughly the order you need to do it.
Before you do anything, make sure that there’s a genuine need within the community for the legal clinic you propose to establish. Check what kinds of legal assistance are already available, especially clinics that provide the services that you propose your clinic will provide. You may also need to verify that:
- there is a sufficiently large population in need of your clinic’s services; and,
- there is a sufficiently large pool of lawyers from which to draw volunteers.
This will be important in smaller communities, especially remote communities.
Set up a steering committee
Firstly and most importantly, you need to establish a steering committee. These are unpaid volunteers who share a commitment to the idea of the project and are prepared to give their time and expertise to setting the clinic up.
The steering committee doesn’t need to be huge, two or three people will do, but many hands make light work and the more people you can get on, the better it will be. However, you may not want to recruit too many people to the committee, as you risk diluting your vision and getting bogged down in an overabundance of ideas; plus, the more people there are, the easier it is to believe that someone else is doing the work. You need people who are motivated and energetic.
The steering committee should be heavily weighted with lawyers, since lawyers are the ones who understand the justice system, the necessities of file intake and the nature of the services to be provided. However, you might also consider recruiting:
- a judge or two;
- someone higher up in your regional, provincial or territorial bar association; and,
- one or two community leaders active in social serving agencies, like the YWCA, the Salvation Army, a First Nations agency or a poverty law group.
Broadening the membership of your steering will help to enhance your credibility within the larger community and provide valuable additional perspectives.
The job of the steering committee is to explore the practical and legal realities of running a legal clinic. Among other things, the committee needs to: verify the interest of the local bench and bar; look into incorporation as a not-for-profit society; recruit leaders within the bar to promote the clinic and encourage volunteers; locate spaces for the clinic within the community; forecast and address administrative needs; and, recruit the founding directors for the society.
Incorporate as a society
Incorporation is helpful for a number of reasons. Firstly, most donors, including most law foundations, won’t provide grants to unincorporated entities. (Some won’t provide funding to entities that aren’t registered charities, but that’s another problem for another day.) Secondly, incorporation gives the organization independence and the ability to open bank accounts and do business in its own name. Thirdly, it extends some protection to the society’s directors from the society’s liabilities.
To incorporate, you will firstly need a list of the people willing to be the first directors of the society. The job of the first directors is to see the society through to incorporation and then to manage its affairs until the first annual general meeting. Note that:
- there may be rules about how many directors must live within the province;
- you will have to obtain approval of the society’s proposed name (there are special rules about names that use Canada or the name of a province, the name can’t be in use by anyone else, and the name must contain an element that describes the society’s function and one distinct element);
- the steering committee may need to draft a constitution indwell certainly need to draft a set of bylaws (you will likely know a solicitor or two who will handle this as a shelf company incorporation using a standard template); and,
- you’ll need a formal business address for the society (which could be the office of one of the directors).
A small filing fee, which likely won’t exceed $500, will also be payable.
In the societies I’ve been involved in incorporating, the steering committee was usually made up most or all of the first directors. We were able to use the services of one of the members’ partners to draft the incorporation documents on a pro bono basis, and we paid the filing fees by collecting “annual dues” from the first directors.
You will need to find at least one room, and possibly more, where your clinics will be held. These rooms need to be private, or at least reasonably private; you should be able to talk to your clients without worrying that your conversation will be overheard. They also need to be reliably available at the same time every clinic day. It will be an administrative nightmare to manage irregularly available rooms.
Space can usually be found inside the courthouse, in an underused witness interview room or any vacant office space accessible to the general public, in community centres or in social service agency offices. You shouldn’t have to pay to use the space.
There are two kinds of insurance you need to look into, directors insurance, for the members of the society’s board of directors, and practice insurance for the lawyers providing the pro bono legal advice.
Directors insurance can be had from most major insurance companies at a very reasonable rate and is intended usually to protect against the liability of directors and officers, errors and omissions, and human resources and human rights issues. Verify that the policy you get protects directors from those actions of the society that normally attract personal liability.
As for practice insurance, you need to verify that your province’s or territory’s lawyers insurance fund covers pro bono work. For most lawyers it will, however if you need to recruit lawyers who are normally exempt from maintaining practice insurance (usually lawyers who are retired, work as in-house counsel or are non-practicing), they will need get coverage of some sort. To keep costs down, you may be able to negotiate a deal with your law society; in British Columbia, the law society has arranged for the provision of limited insurance to lawyers providing pro bono services at no cost. I understand that this is also the case in Alberta, Ontario and Saskatchewan.
Next, you need to start signing people up and getting a sense of at least the initial commitment the legal community is prepared to make. This will not be as difficult as you think. I was once designing a proposal for a mandatory two-hour court-based education program to be offered by volunteer lawyers, and in the space of a single afternoon I was able to sign enough people up that biweekly sessions could be provided with each volunteer only teaching two sessions a year.
Sole practitioners and lawyers at small firms can be appealed to by emphasizing the limited, contained nature of the commitment and offering assurances that any additional work will be confined to what they choose to take on. These practitioners are likely to be the most keenly aware of any unmet need for legal services in the community and its consequences.
For large firms, you may need to start with the managing partners. Associate lawyers at law firms are particularly enslaved to the billable hour and may need permission from on high to take on non-billable work. The managing partners of large firms can be appealed to by casting the volunteer opportunity as an easy way for the firm to provide pro bono services to the general public and fulfill its unspoken social obligation, and by offering opportunities to publicly credit and the firms for their good work. As a plus, big firms can also often be pressed to cover the cost of things like receptions and publicity events.
Establish policy and design administrative workflow
Your clinic, needless to say, won’t run itself. The steering committee needs to come up with a plan for how all the nuts and bolts will fit together to produce a sustainable operation. Don’t worry about getting it perfect the first time, you will make mistakes and there will be screw ups. With time, all these will be sorted out. Here are some things to think about.
1. Will your clinic cover all areas of the law or just some? The answer to this question will depend on the needs of the community, the areas of expertise of the volunteer lawyers and the existence of other clinics that already address a particular area of the law.
2. Will you screen for eligibility based on income? To some extent, this is a question of the demand you anticipate for the clinic’s services.
3. Will you screen for eligibility based on another factor? This may only be relevant if you anticipate the clinic serving a specific population, such as union members or First Nations, LGBTTQ or immigrant communities.
4. Who will manage intake? Intake is not as easy as it seems. Identifying information, especially the information necessary for the volunteer lawyers to perform conflicts checks, must be collected. You will also want to identify the nature of clients’ legal problem where the advice of a specialist lawyer, like a family law, immigration or criminal lawyer, is required. This information will need to be provided to the volunteer lawyer and retained by the society for the indefinite future.
5. What waivers and other forms are required? You will certainly need a waiver that the client will sign, and the lawyer will witness, releasing the society, its directors and the clinic lawyer from any and all conceivable responsibility and liability. Other forms might include:
- an intake sheet to be retained by the society;
- the client list that you’ll send to the volunteer lawyers which will identify the client, the opposing party, the area of law involved and the essential nature of the client’s legal problem, and provide the client’s contact telephone number and email address;
- contact information for the local courts and court services;
- contact information for local social service agencies to which referrals will be commonly made; and,
- a list of on- and offline legal resources, including law libraries, web resources, self-help centres and other legal clinics.
6. Which potential clients will your clinic not serve? This might include clients who have been threatening or abusive in the past, or it might include identifiable groups such as people with six-figure incomes or men wishing to attend a women’s clinic.
7. What will happen where volunteer lawyers identify a conflict? You will have to decide how and when clients are informed of a conflict or potential conflict, and procedures will have to be put in place about how the volunteer lawyer reports the problem and whether the client is referred to another volunteer lawyer or turned away from the clinic altogether.
There are a ton of other issues that the steering committee may need to address ahead of time. How will clients’ privacy be maintained? Who will keep the lawyers’ notes from each client? What will the lawyer need to report back to the society? How will underserving or misbehaving lawyers be dealt with? Should the lawyers provide their clients with notes or some other summary of the advice given and next steps recommended? How will complaints be dealt with? Who will the public contact be? Will your clinic have its own phone number? How long will client sessions be, and will you restrict the number of times a client can use your clinic’s services? Who will design the clinic website, logo and the other accoutrements of a corporate identity?
Designate administrative responsibility and think about funding
Once a working model has been designed, the steering committee will need to decide who will be responsible for administering the clinic. In the short term, it may be that one of the committee members has an assistant or staff member who can do this off the side of his or her desk, or perhaps a larger firm is prepared to donate half of a jiunior assistant’s time. Eventually, however, if your clinic proves to be a success, you will have to hire someone, and hiring someone isn’t just about paying a salary, you have to think about space too.
It may not be possible to hire a staff member from the annual dues of the society’s members, and that means you’ll need to think about funding. You were going to get to this point anyway, as your clinic will have a number of sundry costs that your members won’t be happy covering for long, such as the cost of paper, copying, telephone lines, websites and so forth.
Most legal clinics are funded through their province’s or territory’s law foundation. The funding of legal clinics is one of their primary mandates. The kind of funding you will need is an operating grant; this is the kind of grant intended to cover staff salaries, rent and other overhead costs, and is what you need to make your clinic self-sustaining. You will need to apply for this grant — the law foundation will not come to you — and the necessary application materials will be on the law foundation’s website. You might also think of applying to local foundations, like the Calgary Foundation or the Vancouver Foundation, or tapping large firms for ongoing support.
(Karen Dyck has suggested that funding should be one of the first things a steering committee things about, and I’m inclined to agree with her.)
Open an bank account
You’ll need to open a bank account for your society; the initial deposit will likely be the annual dues collected from the founding directors. The bank will require your society’s certificate and perhaps articles of corporation.
You will need to decide who the signing officers will be and whether a single signature is required for society cheques, or perhaps only for cheques under a certain value. If two signatures will be required, you need to be practical in deciding who the signatories, usually the president and treasurer, will be. If one lives in Montreal and the other in Trois-Rivières, cheques cannot be issues promptly.
Launch and promote
Once the policies and procedures have been ironed out, you’re incorporated and you’ve established your list of volunteer lawyers, it’s time to formally launch your clinic and celebrate what you’ve accomplished. The launch of your clinic isn’t just an opportunity for wine and cheese, although there’s certainly nothing wrong with that, it’s also an opportunity to get the word out among everyone who needs to know that your clinic exists. You must invite the local bench and bar, and you should certainly invite representatives of the bar association, the law society and your local law school; normally someone like the chief justice or dean can be prevailed upon to provide a short speech. You should also invite, perhaps even at a separate community event, all of the people from potential referring agencies so that they can get to know you, your clinic and the services you offer.
This last point, about referring agencies, is really important. These agencies are going to be the primary source of your clinic’s clients, and they need to know about you. If they don’t, they can’t refer.
In terms of promoting your clinic, you’ll need to come up with a website and the usual selection of printed material. Small, bookmark-style cards with contact information and a description of your services can be left at the courthouse. Flyers can be left with social service providers. Any source of potential referrals, including your law society and bar association, need to add your clinic to their referral lists. A website is a necessity; the good news is that they’re dirt cheap. You should also prepare a five-minute canned introduction you can give to meetings of your bar association, professional groups, local community groups and to local social service groups.
Annual general meetings and planning for the future
You must have your society’s first annual general meeting within a certain number of months. In British Columbia, you have 18 months to have your first meeting, if I recall correctly. AGMs are where you will present your society’s financial statements and officers’ reports to your membership, and to anyone else you’ve invited. They’re also where the society’s bylaws are amended, where important committees are struck and populated, and where policies that require member buy-in are discussed and debated.
AGMs are also when elections to your board of directors will be held, and this raises issues about succession planning. I expect that most of the first directors will stick around for four or five years, however at some point burnout will set in. This is reasonable and normal, but it does mean that you need to think about who you would like to sit on your board, and the attitudes and values you’d ideally like candidates to have. This, I humbly suggest, is extremely important. You need to always have the future of your society in mind, and this involves thinking about who would be a good addition to the board, which board member would be an effective president and who would be best to succeed that president.
For most boards of this nature, it’s easy enough to plan nominations for election to the board. You will want to pick your candidates carefully, and it’s not enough just to pick a warm body:
1. You should be thinking about what the candidate brings to the board and to the society. Valuable commodities might include a candidate’s connections, social status, wealth, influence, credibility or organizational skills. Think carefully about what a potential candidate can bring to the board.
2. You also don’t want candidates who are there to warm a seat or pad their resumes. You want people who are active and involved. You want who will volunteer for committees and tasks, and then actually get the job done.
3. You need to plan to avoid disaster. You don’t want your society to be hijacked by someone with a personal agenda and you don’t want to have disagreeable people on your board. (Board meetings are difficult enough without having to deal with an obstreperous jerk.)
These consideration may mean that you’ll have to engineer the outcome of your AGM by setting it for a particular date and time, stocking it with members who will vote at your suggestion or carefully phrasing your notice of elections. AGMs are not an abstract Platonic ideal of democracy; they are a task that must be accomplished, and it is often in the interests of your society to do what needs to be done, within the limits of your bylaws and the Societies Act, to ensure a particular outcome.
I recognize that you may feel somewhat daunted at this point, if you’ve gotten this far. However, I reassure you that with a good, helpful steering committee, all of these tasks can be accomplished with relative ease. As I said, many hands make light work, and this is especially true when undertaking a project as involved as setting up a legal clinic. (It also helps to let the members of the steering committee pick the tasks they want to work on; people seem to be more motivated when they’re asked to do something they’re interested in.) One person could be in charge of publicity, and another for volunteer recruitment. Someone else could be tasked with the job of getting the group incorporated, especially someone who works with a solicitor, and someone with bent for organization could be asked to handle the drafting of policies and forms.
Remember that you don’t have to reinvent the wheel. Most groups that I’ve been involved with would be happy to let you borrow their materials, their practice model, their processes and their policies. I expect that all you need to do is ask and it’ll be free for the taking.
Private pro bono legal advice clinics play a critical role in promoting access to justice. Huge swaths of the public are not eligible for legal aid and yet cant afford a lawyer, and although we’ve made tremendous progress in public legal education, there is no substitute for speaking to a lawyer face to face. If you don’t have a private clinic in your community, please, set one up yourself.