President's View

Pro bono programs and enhancing access to legal services

John J.L. Hunter, QC

In September, Vancouver will host the 2nd National Pro Bono Conference, under the auspices of Pro Bono Law of BC and similar organizations from Alberta, Saskatchewan and Ontario. Hosting such a conference invites consideration of the state of pro bono services in British Columbia. Much has been accomplished since Pro Bono Law of BC was created in 2002 by the Law Society and the BC Branch of the Canadian Bar Association, but much remains to be done.

One of the objectives of Pro Bono Law of BC is to promote a dynamic pro bono culture in this province. While BC lawyers share a rich tradition of providing services to low income individuals and non-profit organizations without fee, our pro bono culture can hardly be described as dynamic.

It would be more accurate to say that the burden of pro bono services has fallen disproportionately on a small number of dedicated professionals working with the Salvation Army BC Pro Bono Program, the Western Canada Society to Access Justice and the law school clinics. Few of our larger firms have structured pro bono programs with articulated objectives. Is it time to ask our leading firms to make a more tangible contribution to pro bono legal services?

A comparison with our colleagues south of the border is instructive. The National Association of Legal Professionals reported that 75 per cent of the 1,400 law firms who responded to their survey gave billable hour credit for pro bono work. About half the firms encouraged their lawyers to do an average of 50 hours per year; the others had no specific target.

The standard of 50 hours per year has been set by the American Bar Association, whose Model Rule 6.1 reads as follows: Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.

Many large American firms have designated partners to supervise their pro bono programs, and appear to pursue competitive advantage by touting their pro bono participation. The comparable figures for British Columbia are considerably more modest.

A recent survey by Pro Bono Law of BC indicates that only 22 per cent of the larger BC firms give billable hour credit for pro bono work. Only 33 per cent reported having any formal pro bono policy, although several firms indicated that such a policy was in the planning stages. We seem to be lagging behind our American colleagues in pro bono commitment. Why is that?

One answer may be the ranking of firms that is prevalent in the US and is often based in part on pro bono participation. Since 2003, the influential American Lawyer magazine has produced an "A-list" of firms, based on four factors — revenue per lawyer, associate satisfaction, diversity and pro bono activity. The American operating assumption has been that pro bono activity is a good recruitment tool.

In Canada, our third party rating services tend to concentrate on the practice skills of the lawyers of the firm — an important measuring stick for prospective clients, but one that misses what many young associates and law students consider a professional responsibility of law firms. Firms with defined pro bono programs take strategic recruiting advantage of the fact that pro bono work is immensely satisfying, tapping into the ethical commitments and aspirations that inspired many to enter the legal profession.

In larger firms, particularly, it has become more and more difficult to give associates the kind of direct responsibilities we all know are necessary for development of lawyer skills and competence. On pro bono files, associates can have direct client contact and can gain valuable court experience as lead counsel.

Access to legal services is becoming more and more difficult for many individuals in our communities. The increasing number of self-represented litigants and growing reliance on self-help guides is well known to us all. Our profession tends to expect government to improve legal aid funding as the solution to access problems. While the Law Society continues to urge greater governmental funding for legal aid, it may be time for each of us to step up, individually and collectively through our firm organizations, to meet these challenges ourselves.

The Law Society has recently released a report on the unbundling of legal services which addresses access issues that arise from the "entire contract" theory of legal representation. Progress on limited scope legal services may be particularly helpful for lawyers at larger firms — where conflicts are a constant concern — seeking opportunities to participate in pro bono legal service clinics.

I have emphasized the role of firms in providing pro bono services because I recognize

that the high degree of specialization in our profession, particularly in the Lower Mainland, may make it unrealistic to expect each individual lawyer to provide 50 hours of pro bono work annually. The American experience would suggest, however, that such a goal is not unrealistic on a firm-wide basis. I invite those firms with sufficient resources to respond to this challenge to explore whether a structured pro bono program with realistic incentives for participation could be instituted for the benefit of those who need our help but cannot afford to pay for our services.