A Framework for the Delivery of Pro Bono Legal Services in the Province of British Columbia
An interim report of the Law Society / Canadian Bar Association Pro Bono Committee
November 24, 1999
At the Annual Meeting of the Canadian Bar Association in St. John’s Newfoundland in 1998, it was resolved that the CBA should take steps to encourage and promote pro bono activity and to recognize pro bono efforts undertaken by members of the legal profession in Canada.
At the Annual General Meeting of the Law Society of British Columbia in September, 1998, it was resolved that the Law Society of British Columbia work cooperatively with the CBA (B.C. Branch) to develop and encourage programs for the delivery of pro bono legal services within the province of British Columbia.
These resolutions are attached as Schedule 1.
In the Fall of 1998, a Committee was struck by the Law Society of British Columbia and the CBA (B.C. Branch) to implement these resolutions. The Committee consists of the following members:
Rob McDiarmid, QC, Co-Chair (Bencher, Law Society of B.C.)
Carman J. Overholt, Co-Chair (Executive, CBA, B.C. Branch)
Jim Matkin, Law Society of B.C.
John Simpson, Legal Services Society
Charlotte Ensminger, Law Society of B.C.
Elizabeth Cordeau, Law Society of B.C.
Caroline Nevin, CBA, B.C. Branch
The purpose of this interim report is twofold. First, the Committee will report on its work to date and identify the issues raised in the course of its deliberations. Second, this report includes current recommendations of the Committee that we believe will provide a framework for the delivery of pro bono legal services in the province of British Columbia.
THE URGENT NEED FOR PRO BONO — WHY SHOULD WE CARE?
One need not look very far to see that the challenges to accessing justice are increasing daily. More and more people are appearing in court without a lawyer, largely because they cannot afford one. The gap between rich and poor has widened, the law has become increasingly complex, and severe budget cuts have had a dramatic impact on the availability of legal aid. Social service and community organizations that have traditionally assisted those with limited means are finding their resources stretched to the limit. The challenges to gaining equal access to justice are real.
Lawyers hold a unique place within the justice system and are well placed to respond to the urgent need that exists in our communities. Canada, Australia, the United States, and Britain are just some of the countries around the world in which the legal profession itself has taken the leadership role in finding ways to promote lawyers’ participation in pro bono work.
THE OBLIGATION TO DO PRO BONO LEGAL WORK
The lawyer’s function is grounded in role morality, the idea that special obligations attach to certain roles, in this case, to render justice. Lawyers claim autonomy to perform their functions as a consequence of specialized knowledge and skill. The state grants autonomy, an effective monopoly, in exchange for lawyers, as officers of the court, discharging their duty to further equality before the law. After all, the very reason the state conferred such a monopoly was so that justice could best be served, a notion that surely means that even those unable to pay or those pursuing an unpopular cause can expect legal representation. A lawyer’s duty to serve those unable to afford to pay is thus not an act of charity or benevolence, but rather one of professional responsibility, reinforced by the terms under which the state has granted to the profession effective control of the legal system.
Katzman, R. ed. (1995) The Law Firm and the Public Good, Washington DC: The Brookings Institution.
No one should be denied access to justice because of poverty. In a modern democracy dedicated to the rule of law, the justice system should be accessible to all people. While it is the primary responsibility of government to provide legal aid to ensure equal access to justice, the legal profession has a fundamental part to play in ensuring the proper administration of justice. There have always been those who lack the means to obtain legal advice or assistance. Many of these people are represented either for free, or for much reduced fees, by lawyers who believe they have a moral and professional duty to break down the barriers that prevent full access to justice. These pro bono activities in the public interest are an important aspect of professionalism and the practice of law.
See attached Bibliography (Schedule 2).
THE COMMITTEE’S WORK SO FAR AND ISSUES RAISED DURING ITS DELIBERATIONS
1. Pro bono survey
The Committee believes that a comprehensive survey of the legal profession is necessary in order to obtain the information it needs to conclude its work and to create a framework for the effective delivery of pro bono legal services of the highest standards throughout the province of British Columbia. (See draft survey, Schedule 3 attached). This draft survey is currently being revised based on the review and recommendations of an independent consultant.
2. Definition of pro bono legal services
The draft survey is intended to assist the Committee in determining an appropriate definition of pro bono legal services. The Committee favours a fairly broad definition of pro bono legal services but it does not believe a definition of pro bono should include non-legal community service work. The Committee believes that a precise definition of pro bono legal services is necessary in order to ensure that the profession knows and understands the nature of the legal services that are to be promoted in the province of British Columbia on a pro bono basis.
3. Insurance and regulatory issues
The Committee discussed the current regulatory regime with Don Thompson, Deputy Executive Director of the Law Society. With Mr. Thompson’s assistance, the Committee concluded that a separate class of members should be created in order to encourage non-practising or retired members and other members not insured by the Law Society (e.g. corporate counsel and government lawyers) to participate in the delivery of pro bono legal services. These members will be subject to the Law Society Rules and covered by insurance for the work they perform in providing pro bono legal services. In order to encourage them to participate in the delivery of pro bono legal services, the Committee recommends, however, that they not be required to pay insurance premiums or practice fees in connection with their pro bono work.
The Committee does not anticipate that the new class of membership will result in much increase in cost to the Law Society or its members. The Committee is also of the view that pro bono legal work will not give rise to any significant increase in claims against lawyers . (See memo from Don Thompson to Susan Forbes dated July 2, 1999 for a discussion of these issues, attached as Schedule 4)
4. Conflict of interest
The Committee discussed the potential for conflict of interest when a member participates in a pro bono legal services program. Lawyers participating in pro bono must ensure that they conduct all inquiries in their firm and through the pro bono legal services program in order to avoid contravention of Chapter 6, Rule 7 of the Professional Conduct Handbook. The Committee believes that operating procedures should be developed for pro bono programs that will assist pro bono lawyers in ensuring there is no conflict of interest arising from the delivery of pro bono legal services.
5. Model law firm policies
The Committee met with Greg Heywood and Andrew Haring of Russell & DuMoulin to discuss developing and implementing pro bono policies for law firms. A sample policy was prepared by the Committee and is attached as Schedule 5.
6. Acknowledging and encouraging lawyers’ participation in pro bono
Although the Committee is not in favour of mandatory participation by members in pro bono legal services, the Committee believes that a great deal can be done to encourage law firms and lawyers to participate in the delivery of pro bono legal services.
Various suggestions were made to encourage participation in pro bono legal services:
liaising with law schools to ensure that this professional responsibility is included in their curriculum;
including the topic of pro bono in the PLTC curriculum;
involvement in pro bono should to be a criterion for appointment as Queen’s Counsel and other CBA and Law Society honours;
involvement in pro bono should be a criterion for judicial appointments;
the development of a pro bono recognition and achievement program.
7. Inventory of existing pro bono legal services
There is a considerable level of pro bono legal services currently being provided by members of the profession. The Committee sees an important need for a comprehensive list of existing pro bono programs in order to identify gaps in services. As a first step, the Committee has begun the task of compiling an inventory of free legal services in the Lower Mainland.
8. The pro bono experience in other jurisdictions
The Committee reviewed various pro bono initiatives underway in other jurisdictions. The following is a summary of some aspects of the pro bono experience in Ontario, Alberta, the United States, Britain and Australia.
Ontario has two primary existing pro bono programs. The Volunteer Lawyers Service ("VLS") is a joint project of the United Way of Toronto, the Volunteer Centre of Toronto, the Law Society of Upper Canada, and the Canadian Bar Association. It was launched in 1994 and offers free legal services to charitable and not-for profit community organizations. Lawyers offer legal advice and services in many areas of law such as incorporation and bylaws, charitable status, employment and labour matters, and tenant and landlord issues. VLS also offers seminars on such topics as board of directors liability, Y2K readiness, and charitable incorporation.
Pro bono Students Canada ("PBSC") is a network of law schools and community organizations that matches law students with public interest and non-governmental organizations, legal clinics, tribunals, agencies, and lawyers who are doing pro bono work. It encourages students to become more involved in their communities while promoting a pro bono ethic that leads to continued volunteering throughout the student’s professional career. In the past academic year, almost 300 students have participated in PBSC across Ontario. The program has now grown to include the law schools at the University of Alberta, University of British Columbia, the University of Calgary, the University of Manitoba, and the University of New Brunswick. It is looking to expand further to other Canadian law schools. The program is principally funded by the Law Foundation of Ontario and the Kahanoff Foundation, a private foundation. UBC’s involvement with PBSC began this fall.
In September 1998, a small group representing legal academics, lawyers and the bench began meeting to explore how best to encourage and support pro bono activity by Ontario lawyers. The membership of the Ontario Pro bono Initiative includes the Dean of the Faculty of Law, University of Toronto, as well as judges and private practitioners.
In December 1998, the Ontario Pro bono Initiative sponsored a roundtable at the University of Toronto’s Faculty of Law. A follow-up roundtable was held in March, 1999. In April, representatives from the six Ontario law schools, firms of varying size and practice areas, the bench, the CBA, the Law Society of Upper Canada, the charitable sector and government participated in a Pro bono Summit to discuss ways of enhancing pro bono services in Ontario. The roundtables and the Summit discussions identified a need for an ongoing institutional structure to function as a focal point for the delivery of pro bono services, as well as to facilitate research, debate, policy development and education on pro bono. The University of Toronto’s Faculty of Law is proposing to establish a Centre for the Advancement of Pro bono Services to assist in a more effective delivery of pro bono services. One of the primary policy functions of the Centre will be to identify the legal needs of low income people and to evaluate the public and private means available for meeting those needs.
Highlights of the Ontario Pro Bono Summit discussion
The following highlights of discussions held at the Ontario Pro Bono Summit are of particular relevance to the work of the B.C. Pro Bono Initiative.
1. Rationale for pro bono service delivery
The Ontario Summit found that the broader community’s need for free legal services is growing. It was their view that while widespread access to legal services is a core responsibility of the state, pro bono is a complement to an appropriate level of state funding for legal services. In addition, lawyers who perform pro bono work derive many benefits including increased professional satisfaction and further skills development.
2. Barriers to delivery of pro bono work
The Summit identified and discussed in some detail the following existing barriers to the delivery of pro bono work:
the identification and articulation of the wider community’s needs for legal services
the lack of formal support networks for the provisions of pro bono services within and across legal firms
training professionals for pro bono service delivery
matching professional resources with the needs of the community
the need for financial resources to support disbursements and other out-of-pocket costs associated with pro bono work
3. Agenda for Reform — identifying concrete initiatives to improve the delivery of pro bono services
The Summit set itself the following development and implementation agenda:
develop a coherent and clear definition of pro bono services
develop a mechanism for identifying and articulating pro bono needs, and then matching those needs with resources within the profession
develop a capacity on the part of the profession for identifying and evaluating global trends in the demand for pro bono services
develop pro bono programs within and across the profession
secure earmarked resources for covering various out-of-pocket costs associated with pro bono activity
At the heart of the recommendations coming out of the Ontario Summit was the proposal to establish a Centre for the Advancement of Pro Bono Services. The Centre would assist in a more effective delivery of pro bono services while also providing support and recognition to lawyers who wish to do pro bono work.
The Ontario pro bono initiative plans to hold a second pro bono summit in the near future, at which they will review the progress that has been made on their agenda for action.
Since 1971, Calgary Legal Guidance ("CLG") has been providing legal assistance to financially disadvantaged people who do not qualify for legal aid and would not otherwise have access to a lawyer. In 1997, CLG assisted 4,192 clients with incomes below the poverty line in matters pertaining to criminal, family, and poverty law, through its downtown and community outreach clinics. CLG’s programs are specifically targeted to aboriginal people, persons with disabilities, women, the elderly, immigrants and illiterate and under-educated people.
CLG works with various partner organizations to offer five primary programs: a Volunteer Clinical Program, Follow-up Program, Public Legal Education Program, Court Preparation/Restraining Order Program, and a Social Benefits Advocacy Program. The bulk of CLG’s services are provided by volunteer lawyers at evening clinics. All lawyers volunteering at the clinics must be insured members of the Law Society of Alberta. Clinic clients receive follow-up assistance as necessary from a paid staff lawyer.
CLG’s primary funders are the Alberta Law Foundation, the United Way, the City of Calgary, and an anonymous donor. Recently, the Law Society of Alberta’s Pro Bono Committee agreed to fund and partner with CLG to develop the CLG clinical model in other parts of the province. The first target area is Edmonton and the initiative involves a broad consultation with community organizations to ensure a community-based approach.
THE UNITED STATES
The ABA Center for Pro Bono was formed through the American Bar Association’s Standing Committee on Pro Bono and Public Service. The mission of the Center for Pro Bono is to assist ABA members and the legal community in developing and supporting effective pro bono legal services in civil matters as part of the profession’s effort to ensure access to legal representation and the American system of justice. It has articulated the following goals:
to help ensure that all lawyers have an opportunity to meet their ethical obligation to provide professional pro bono services;
to assist in the creation, design and implementation of effective organized pro bono programs;
to ensure that the existing pro bono programs continue providing high quality legal services to the poor;
to integrate pro bono representation into the system for delivering civil legal services to the poor.
The ABA Center for Pro Bono is just one of many initiatives underway in the United States. The Pro Bono Institute, housed at Georgetown University Law Center, is mandated to explore and identify new approaches to and resources for the provision of legal services to the poor, disadvantaged, and other individuals or groups unable to secure legal assistance to address critical problems. In doing so, the Institute researches innovative programs and models.
The Institute undertakes evaluation to ensure that the proposals and methods identified are workable in the real world of legal services delivery. In its work, the Institute seeks to look objectively and carefully at the strengths and limitations of current models and, working with key decision makers and opinion leaders, to assess, improve, and re-think those systems and models to avoid stagnancy and to ensure responsiveness to new issues and opportunities. Among the projects operating under the aegis of the Institute is the highly-regarded Law Firm Pro Bono Project, which also receives support and guidance from the American Bar Association Fund for Justice and Education.
In addition to these programs, there are a multitude of state and local pro bono initiatives provided through bar associations, law firms, community organizations and the courts. There is also an on-line pro bono service called probo.net, which debuted in December 1998. The site provides sample correspondence, pleadings and training materials for pro bono lawyers, as well as answering frequently asked questions. It matches interested lawyers with pro bono opportunities. In addition to developing training materials in each practice area, it provides access to a community of other volunteer lawyers led by practitioners with expertise in the field.
In September, 1997, the Solicitors Pro Bono Group (the "SPBG") was launched in Britain. Its development grew out of a national meeting of lawyers who agreed that an entity should be formed to encourage and formalize pro bono activity. Based on similar models in other countries, the SPBG is an independent charity that supports, promotes and encourages a profession-wide commitment to pro bono. The Group’s funding is provided solely by membership and donations. To achieve its aims, it works with members from the solicitors’ profession as well as the advice and voluntary sector. It does not take on pro bono cases, maintain a list of solicitors undertaking work pro bono or refer cases to individual lawyers. Rather, it provides information and expertise about pro bono and lobbies government. It publishes a quarterly newsletter, is developing a practical manual, and has recently organized a national conference on pro bono. British Aerospace’s legal department has become SPBG’s first in-house member.
SPBG has the support of the Lord Chief Justice, Lord Bingham of Cornhill, who described its launch as "one of the most encouraging developments in our legal life for many years…." It also has the support of the Law Society and government; SPBG says it was able to overcome the inevitable concern of the bar that government would use pro bono as an excuse for further cuts to legal aid. Many major private law firms in London have now appointed full-time pro bono officers to coordinate their firms’ pro bono activities both locally and globally.
In Queensland, the Federal Court has proposed a pro bono scheme to enable unrepresented litigants with a meritorious case to obtain legal advice or representation. The scheme has the support of the Law Society and the bar. The scheme includes the following key features: the registrar will maintain a list of lawyers who have agreed to participate in the scheme; a court or judge may refer a litigant to the registrar for a referral; a referral may be for advice, drafting or settling documents, or representation; a lawyer to whom a referral is made can choose whether or not to accept the referral; and, if costs are ordered in favour of a litigant assisted by a pro bono lawyer, the lawyer may recover fees and disbursements under the order.
In South Australia, the Law Society has established a Litigation Assistance Fund which aims to assist people, corporations or incorporated associations to proceed with litigation in South Australia where they cannot get legal aid, but have insufficient resources to pay for litigation themselves. The Fund assists with personal injury claims, commercial and property matters, inheritance claims, and general tort claims. It does not assist with family law or criminal matters, nor does it provide assistance for defending a claim. An application must satisfy both a means and a merits test to be eligible for assistance.
In 1998, the Law Foundation of New South Wales’ Centre for Legal Process published a comprehensive report entitled "Future Directions for Pro Bono Legal Services in New South Wales". Two key themes emerged from the study: modernizing traditional pro bono practice, and resourcing pro bono legal services. The Report sets out a number of principles for the delivery of pro bono legal services. These include addressing issues such as the role of pro bono in ensuring access to justice while maintaining adequate legal aid funding, ensuring quality in the delivery of pro bono legal services, and providing adequate resourcing for and promotion of pro bono.
The Report proposed four different models for the delivery of pro bono services. Based on the Report’s findings, the Foundation’s Centre for Legal Process supported adoption of the "central contact point" model. This model provides for centralized policy development and improved access to pro bono services while maintaining a diverse range of local and institutional schemes in operation. The proposed coordinating agency would operate as a first point of contact, directing referring organizations or individual clients to a scheme that is most appropriate for them. The agency would not be involved in providing legal services or screening cases in detail. However, it would assist by advising inquirers of the most appropriate avenue of assistance. The agency would also develop information materials and promote pro bono services to community organizations. It would facilitate the development of pro bono networks within the legal profession and create a register of non-legal experts willing to work on a pro bono basis. It is anticipated that the agency would also operate as a policy body in the area of pro bono in consultation with practitioners and organizations who provide pro bono legal services.
OUR EXPERIENCE — The LAW SOCIETY / CBA PRO BONO COMMITTEE'S PROPOSED FRAMEWORK
The Committee believes that a more coordinated approach to the delivery of pro bono legal services in the province is needed. We have concluded that an organization should be created to support and coordinate the activities of existing services and to promote the delivery of pro bono legal services throughout the province.
The Committee recognizes that considerable pro bono legal services are already being provided by many members of the profession. The Committee believes that the creation of a body responsible for pro bono legal services will ensure consistency in the delivery and standards of those services. Further, it believes that the proposed body would work towards the promotion of various programs and projects throughout the province that would assist everyone involved in the delivery of pro bono legal services. For instance, the Committee believes that a manual or reference materials outlining how a pro bono legal services clinic may be operated is needed in order to ensure that the services are being delivered at an appropriate standard.
There are many organizations such as the Salvation Army Pro Bono Lawyer Consultant Program, the Battered Women’s Support Services and others which would benefit from the involvement of more members of the profession. These programs need additional support in order to ensure their continued success and growth within the province.
The proposed Society would have the responsibility for providing training, establishing standards, as well as perhaps licensing groups that wish to provide pro bono legal services. It would also create a virtual society to permit member and community organizations’ participation through the internet. As well, the CBA Practice Advisors may be relied upon to assist lawyers involved in providing pro bono legal services.
The Committee supports the formation of a pro bono society with the following Purpose, Guidelines and Vision Statement:
To facilitate and promote pro bono legal services in the province of British Columbia.
1. Pro bono legal services will be delivered to any person who:
(a) has a legal problem,
(b) cannot afford legal services; and
(b) is ineligible for legal aid.
2. Pro bono will also be available when public interest advocacy is served through the provision of pro bono legal services.
3. The society will not be a funding agency.
4. The Law Society and the Canadian Bar, B.C. Branch, will control the governance of the society.
By December 31, 2000:
(a) everyone who fits into the guidelines will have access to proper legal advice and/or representation;
(b) every lawyer in the province will be contributing to the delivery of pro bono legal services;
(c) an umbrella society will be established that:
(i) provides easy access to resources in connection with pro bono legal services;
(ii) coordinates the delivery of pro bono legal services;
(iii) supports law firms, lawyers and other societies in the delivery of pro bono legal services;
(iv) maximize resources;
(v) encourages members to participate in the delivery of pro bono legal services;
(vi) promotes a "pro bono culture" in the legal community, including law schools and community colleges;
(vii) develops and monitors policy, prepare information and liaises with other jurisdictions in connection with the delivery of pro bono legal services;
(viii) is recognized as a leader in ensuring the effective delivery of pro bono legal services of the highest professional standards; and
(ix) enhances the image of the legal profession.
The Committee also supports holding a conference on pro bono to ensure broad consultation with key stakeholders and interested parties, and to discuss the ways in which pro bono legal services should be administered in the province of B.C.
The proposed society would be responsible for fundraising for its own operations. An application would be made to various groups including the Law Foundation of British Columbia for the funds necessary to achieve the goals of the proposed framework.
Philanthropy and tax considerations
The legal community, business community and the broader community would be the source of funds needed to create the framework recommended in this report. The Committee consulted with Mr. Blake Bromley on the tax considerations involved in establishing a society for the purpose of administering pro bono legal services and a separate foundation for fundraising. Mr. Bromley recommended that two entities be created for these purposes, to facilitate access to funds and donors who wish to take advantage of charitable tax deductibility rules.
Public and government relations implications
The public and government relations benefits of the proposed pro bono framework should not be underestimated. Lawyers are often criticized for their apparent lack of commitment to assisting people who need help the most, irrespective of whether the criticism is deserved or not. Many lawyers are committed to public service and they demonstrate that commitment by giving their time and resources to a variety of charitable organizations and worthy causes. Unfortunately, the public is not fully aware of the profession’s philanthropic spirit; as a result, lawyers are still considered to be "the group that won’t do anything for free in spite of charging those outrageous legal fees".
From a public relations perspective, the proposed framework for pro bono would accomplish the following objectives:
- demonstrate to the public that lawyers can and do perform charitable work
- debunk the myth that lawyers do not currently provide or never have provided pro bono legal services
- mobilize lawyers who are looking for new, meaningful ways to give back to the community
- generate positive media coverage about lawyers’ humanitarian activities, thus improving the public image of lawyers
In terms of government relations, one of the key messages delivered to the Law Society from government during the on-again, off-again legal aid crisis has been the following: "There is no more money for legal aid. Everyone has to do more with less and it is the responsibility of the profession to do its part to deliver legal services to those who need it the most." (Environics Report, 1998). Should the lawyers of British Columbia establish a framework for the coordinated delivery of pro bono, the Law Society and CBA can argue that the profession is indeed making a commitment to the disadvantaged. This can be used by both organizations as a bargaining chip with which to negotiate increased funding for legal aid.
Implications for legal aid
The Committee has concluded that a separate entity dedicated to facilitating and promoting the delivery of pro bono legal services would give the profession a stronger position to lobby for additional government support for legal aid. The pro bono legal services program would not undermine lawyers involved in the delivery of legal aid services in that strict criteria would be maintained to ensure that only clients who are ineligible for legal aid would be eligible to receive pro bono legal services.
If it can be shown that the legal community has clearly fulfilled its obligation to provide pro bono legal services to the public, the Committee believes that the Canadian Bar Association and the Law Society would be in a stronger position to argue for the additional funds needed in order to support the proper delivery of legal aid services in the province of British Columbia.
THE COMMITTEE'S RECOMMENDATIONS
The Committee makes the following recommendations:
The CBA, B.C. Branch, and the Law Society of British Columbia authorize the creation of a society that will have responsibility for promoting the delivery of pro bono legal services in the province of British Columbia.
The CBA, B.C. Branch, and the Law Society of British Columbia authorize the creation of a separate charitable foundation responsible for fundraising for this initiative.
The CBA, B.C. Branch, and the Law Society support the circulation of a pro bono survey to the profession in order to obtain information that will be used by the proposed societies.
A new class of membership for insurance purposes, be considered by the Law Society for retired, non-practising, and members not in private practice who wish to perform pro bono legal services. These members would be provided with insurance and not be required to pay additional insurance or practice fees for their pro bono work.
The Committee be given the mandate to vigorously pursue fundraising in order to establish the proposed entities and to promote and develop pro bono legal services in the province of British Columbia.
The Law Society of British Columbia and the CBA, B.C. Branch, continue to work together to promote participation by members of the profession in the delivery of pro bono legal services.
The CBA, B.C. Branch, and the Law Society establish a schedule and plan for implementation of these recommendations.
The Committee continue consulting with stakeholders within and affected by the justice system including community organizations, health, social services, and advocacy groups.