The (So-Called) Professional Responsibility to Foster Access to Justice

There are many excellent recommendations in the CBA’s Reaching Equal Justice report. 

As a law professor and a member of the Legal Education and Training Team of the CBA’s Legal Futures initiative, I naturally focused on those relating to law schools, including this one:

All graduating law students should have a basic understanding of the issues relating to access to justice and know that fostering access to justice is an integral part of their professional responsibility.

This sounds great but there is a problem. Reaching Equal Justice assumes that access to justice is part of a Canadian lawyer’s professional responsibility. Except that it isn’t – if we take Codes of Professional Conduct as the starting point for defining Canadian lawyers’ professional responsibilities.

The CBA’s own Code of Professional Conduct is embarrassingly silent on fostering access to justice as a professional responsibility.

Surprisingly, perhaps, there is no chapter on Access to Justice in the CBA Code. There is however a chapter on “Practice by Unauthorized Persons”. In fact, the term “access to justice” does not even appear in the CBA Code. To say that access to justice is not an important part of the CBA’s Code is therefore a colossal understatement. It barely registers.

In this the CBA is not unique. The Federation of Law Societies of Canada’s Model Code of Professional Conduct takes a similarly disinterested view towards access to justice as a professional responsibility of Canadian lawyers (although it does at least mention access to justice in the commentary to Rule 4.1-1).

In contrast, most Canadian law schools are already teaching their students that there is a professional obligation to foster access to justice. I imagine that most entering law students heard such inculcations on their first day of law school from their Dean or from a keynote speaker. For many years, the Faculty of Law at Windsor has led the way with a year-long course devoted to Access to Justice. Osgoode introduced a 40 hour public interest requirement years ago. At Ottawa, access to justice infuses the curriculum and we have over 200 students each year applying for 80 Pro Bono Students Canada placements. Every law school in Canada has similar programs.

In the now-mandatory Professional Responsibility course, most law schools use the text Lawyers’ Ethics and Professional Regulation by Alice Woolley, Richard Devlin, Brent Cotter and John M. Law which devotes one of thirteen chapters to Access to Justice (full disclosure: I contributed to two shorter chapters on other subjects in this text).

From my experience, the problem isn’t that we don’t teach enough about access to justice in law schools, it’s that our students don’t have an outlet for their passions for access to justice when they enter the profession.

Codes of Conduct are important because they reflect the ethos of the profession. They serve an educational function, inculcating new members of the profession and radiating out into the general public. Codes of conduct then are powerful symbols of the legal profession.

We can do better in Canada.

The ABA’s Model Rules of Professional Responsibility provides that “Every lawyer has a professional responsibility to provide legal services to those unable to pay.” (Rule 6.1). The ABA Rule then sets an aspirational target of 50 pro bono hours for all lawyers.

I hope the CBA, the Federation of Law Societies and provincial law societies follow the recommendations in Reaching Equal Justice, and explicitly identify fostering access to justice as “an integral part” of Canadian lawyers’ professional responsibility.