A Pay or Play Proposition for Access to Justice

When people lament the deteriorating state of access to justice in Canada and the unwillingness of cash-strapped governments to address the issue in meaningful ways, their focus often shifts to the role of lawyers in ensuring the delivery of critical legal services. Many observers, including Canada’s Chief Justice and Governor-General, characterize the role as a professional responsibility tied to the collective privilege of an effective monopoly on legal work. Others point to the lack of any moral or practical imperative in the equation, and characterize the role as more of a professional expectation. Given that most but not all Canadian lawyers voluntarily engage in some amount of public legal service (legal aid, pro bono or otherwise), the latter view seems closer to reality.

Lawyers’ widespread engagement in public legal service is a heartening and under-reported phenomenon. And yet a close look at annual practice declarations reveals that a relatively small percentage of Canadian lawyers shoulder the bulk of the access to justice burden. Many lawyers are too busy to engage in public legal service, while others (particularly solicitors) lack expertise in practice areas that lend best to serving the public. All lawyers contribute indirectly to the funding of legal aid and public interest legal organizations via standard taxes and fees. Still, for a variety of faultless reasons, many lawyers give less of themselves than others to maintain public confidence in their self-regulating profession.

Perhaps it is time to consider the following modest way of balancing individual lawyer contributions to access to justice while building capacity for more public legal service. Call it the “Pay or Play for A2J” funding model:

As part of his or her annual professional membership fees, a lawyer pays a $300 “A2J Contribution” (an amount roughly equivalent to the average hourly rate among Canadian lawyers) that is earmarked for direct funding of the province’s legal aid and public interest legal organizations. If a lawyer provided and recorded one or more hours of legal aid, pro bono or public legal education service in the previous year— as administered and verified by specific organizations— then his or her A2J Contribution is waived. Thus lawyers “pay or play” to promote access to justice.

Statistics Canada reports that between 10 and 15 percent of lawyers provide legal aid services in most provinces. Based on reports from provincial Law Foundations and pro bono organizations, it is safe to assume that no more than another 10 percent of lawyers (typically far less) provide pro bono or paid public legal service through various legal organizations. In a jurisdiction of 10,000 lawyers, if a mere 1,500 lawyers claimed their waivers, the funding model would generate about $2.5 million in new funding once associated administrative costs are deducted. Of course, Pay or Play for A2J would hopefully spur many more lawyers to engage in claimable public legal service and revenue would consequently be traded for sustainable engagement.

Increased revenue of a few million dollars may not be obviously worth the effort of building the necessary administrative framework, since provincial legal aid organizations are generally underfunded by tens of millions. In British Columbia, for example, the provincial legal aid organization needs an additional $47 million per year just to climb back to its 2002 funding level. But a few million dollars would allow small public interest legal organizations (disclosure: including my organization Access Pro Bono) to survive and to continue providing critical legal services during adverse economic conditions when client demands increase and the supply of funding tends to decrease. More than that, universal A2J Contributions of the monetary or service sort would solidify the moral ground for lawyers to argue that governments should increase legal aid funding. All lawyers would be able to point to a direct and personal contribution to the cause. And they would speak increasingly from positions of knowledge and investment, rather than from perceived positions of self-interest.

Pay or Play for A2J’s engagement tracking mechanisms would also establish a platform for other progressive policies. For example, governments could institute student loan forgiveness programs based on engagement in public legal service. Law Societies could subsidize public legal service though further membership fee reductions. Such policies would go a long way in supporting the new lawyers, small firm lawyers and sole practitioners who often carry a share of the access to justice burden that is disproportionate to their means.

The details of the Pay or Play for A2J funding model are unimportant at this point (and perhaps forever). The proposed names and values of the A2J Contribution and offsetting service hours are presented purely to illustrate a concept—they would be adjustable for particular circumstances. But the fundamental questions for contemplation here are: Is Pay for Play for A2J hopelessly naïve in its design? Or can it serve in a small way to alleviate the current crisis in access to justice?