Pro Bono Meets “Low Bono” at Big BC Law Firms

In the black and white world of organized pro bono legal services, something is either pro bono or it’s not. Legal services are provided for zero compensation, or they’re not considered pro bono. This absolutist perspective is crude and fully disconnected from the simple translation of pro bono from Latin as “for the good”, but necessary to give relevance and integrity to pro bono as a functional concept. If the concept is stretched to include contingency fees or unpaid bills or reduced rates, then it ceases to have reliable meaning for lawyers and their clients. So for pro bono organizations across Canada, it’s either pro bono or “no bono” — the operative definition must be kept pure as the driven snow.

Ironically, the pure definition of pro bono places a hefty price on access to justice for many people. The provision of organized pro bono legal services is generally limited to low-income people who do not qualify for legal aid. A large percentage of middle-income people are left wanting because they exceed the income threshold for pro bono legal service, and yet cannot afford to hire lawyers at market rates. They are the forsaken grey middle in a black and white world.

A litigation service project under development in Vancouver intends to introduce some nuance to the volunteer legal service delivery game. A so-called “low bono” project, the Commercial Trial Assistance Project will engage several large Vancouver law firms in providing pro bono legal consultations and subsequent reduced-rate legal representation at trial to middle-income commercial litigants. The law firms include:

• Blakes;
• Borden Ladner Gervais;
• Bull Housser;
• Farris;
• Fasken Martineau;
• Gowlings;
• Hunter Litigation Chambers;
• Lawson Lundell; and
• McCarthy Tétrault.

These large BC firms have signed on to provide affordable legal services to self-representing commercial litigants, but also to provide valuable trial advocacy experience to their junior lawyers—many of whom must otherwise wait several years before running their own superior court trial.

To be eligible for reduced-rate representation under the Project, commercial litigants must be:

1. scheduled for a BC Supreme Court trial within four months;
2. referred to the Project by the proceeding’s trial management judge;
3. unable to afford market rates for legal representation at trial; and
4. prepared to pay for legal representation at a cost proportionate to their ability to pay and to the amount at stake at trial.

Once referred to the Project by a judge, each litigant will be guaranteed a one-hour pro bono consultation with a lawyer from a participating law firm, as facilitated by Access Pro Bono— BC’s primary pro bono organization. The pro bono consultation may then lead to a retainer for legal representation at a rate tailored to the litigant’s particular financial circumstances.

The Project marks a vital step in developing a more complex, mixed-model legal services delivery system in BC. It recognizes that low- and middle-income litigants have important legal needs that far outpace the ability of legal aid and pro bono organizations to serve them. And while sole practitioners and small firm lawyers have long been offering reduced-rate service as a basic element of sustainable community-based practice, the Project lays an affordable footpath to the large corporate-minded firms where junior litigators are thirsty for more courtroom experience.

Although the Project may add a welcomed shade of grey to BC’s mostly black and white world of organized legal services for low- and middle-income earners, more initiatives and collaborations are required if the system for delivering affordable legal services is to achieve something close to Technicolor. Thankfully, a lively array of public and private bar innovations in access to justice is emerging throughout the country. From medical-legal partnerships in Ontario to unbundled service projects in Alberta to pre-paid legal insurance programs in Quebec, justice system stakeholders are re-imagining ways to provide universal access to justice across Canada. These initiatives will build upon the unwieldy and outdated pro bono or “no bono” service dichotomy, and will provide future subjects for this Slaw column.