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 Raymond Adlington

Chief justice’s remarks spark debate over mandatory pro bono for lawyers

Thursday, February 21, 2019 @ 9:50 AM | By Cristin Schmitz

Canadian Bar Association (CBA) president Raymond Adlington says he does not agree with Chief Justice of Canada Richard Wagner that it would be “very good” if lawyers were required to do some free legal work in order to help alleviate court backlogs and improve the public’s access to justice.

Adlington, a tax partner with McInnes Cooper in Halifax, said the association with 36,000 members has not taken a formal position on mandatory pro bono — a hot button topic which provokes strong reactions within the profession.

 Raymond Adlington

CBA president Raymond Adlington

However, Adlington said in an interview he does not share the opinion of Supreme Court Chief Justice Wagner, who told The Lawyer’s Daily in a wide-ranging interview last month that, in light of court delays and backlogs, it would be “very good” if law societies required lawyers to do at least some pro bono work — a move the chief justice predicted “more and more” legal regulators in Canada will eventually make (no law societies here currently require pro bono work, although mandatory pro bono does exist in some U.S. jurisdictions — see story here.)

“I don’t believe that mandatory pro bono is the solution to our access to justice challenge in this country,” Adlington told The Lawyer’s Daily. “I believe that lawyers should be able to make their individual choices in this regard about how they spend their time and how they choose to devote the time that they’re going to give to their communities.”

Adlington stressed that lawyers already do a lot of pro bono work. “We don’t ask other professionals to do pro bono work,” he noted. “If lawyers choose to do pro bono work that’s certainly on their own volition, and they should be applauded for that initiative. … I believe that adequate funding for the courts, adequate funding for legal aid, and adequate funding for the justice system generally is the solution [to access to justice problems]. So what we would like to see is the federal government put legal aid funding on the same level as the health and social transfer [funding] to the provinces, so that the provinces and territories in the country have the ability to deliver appropriate legal aid services to our most needy populations.”

Adlington also pointed out that the unmet need for legal services exists mostly in specialized areas of the law, such as family law and criminal law — fields in which many lawyers do not have the experience or expertise to practise.

“There’s competency issues there … conflicts of interest questions — there are so many issues that would have to be resolved,” he suggested.

Richard Wagner

Chief Justice of Canada Richard Wagner

Asked whether lawyers as a profession should be doing more — voluntarily — Adlington replied, “Look lawyers are already giving so much to their communities — pro bono is one element of it. But you would be hard-pressed to find volunteer boards or other organizations in this country that don’t have lawyers supporting those initiatives, and they’re as important as the delivery of pro bono legal services. ... And I would hate to see that time and effort be forced to be rededicated to delivery of pro bono legal services because the government of Canada hasn’t appropriately funded the judicial and legal aid system in this country.”

Commenting on the situation in New York state, where jurists must devote at least 50 hours to pro bono legal service as a prerequisite to joining the state bar, Adlington observed “the challenge I would see with that in Canada is simply competency — and who is going to be supervising all of these lawyers who haven’t yet joined the bar in the delivery of those pro bono legal services? ... That’s certainly a challenge that would have to be examined if we were to go down that road.”

Dalhousie law professor Richard Devlin, a director of the Canadian Association of Legal Ethics who has been advocating for mandatory pro bono for more than two decades — welcomed the chief justice’s remarks for opening a conversation.

“I think it’s important for all leaders in the legal community to speak up on ways in which we can try to tackle the access to justice problem,” he said. “It is important, and it is salutary, for the chief justice — and all the chief justices across the country — to take leadership roles in this regard.”

Devlin agreed with Adlington that government support for legal aid is inadequate. “But no matter how much you pump up legal aid from the government, even if they were to invest — it’s never going to cover the access to justice problem,” he opined. “So simply saying ‘Get the governments to fix it by improving legal aid. That’s not going to happen … so that’s just kicking the can down the road [and is] not helpful.”

Devlin argues legal regulators should lead the way with mandatory pro bono, as part of their role to regulate in the public interest, which includes facilitating access to justice.

“Lawyers have a social contract with society because they’ve got a monopoly over legal services … [and] it’s clear that the legal profession is not providing access to justice — even though it’s got a monopoly over access to legal services,” Devlin said. “What we’re doing at the moment is not sufficient, and pro bono is but one element of a larger response needed from law societies.”

Richard Devlin

Dalhousie law professor Richard Devlin

Devlin emphasized, “nobody is saying that pro bono is the magic bullet, or the solution to the access to justice problem. But it is a contribution to some limited degree … as part of our social contract that we should give back.”

He suggested mandatory pro bono could be implemented by requiring lawyers to provide a certain number of hours per year in free legal services, or alternatively make the equivalent financial donation based on their hourly rates. “So you don’t actually have to force people to provide the legal services,” he emphasized. “They could pay a levy in lieu of the mandatory hours and then that money could be pooled to pay for provision of legal services through other pro bono organizations.”

For newly called lawyers who can’t afford to work pro bono because of their student loans and other debts incurred for their education, Devlin suggested they could be exempted for five years, or the pro bono requirements could be scaled back over that period.

“The bigger issue is: Are firm cultures going to support their staff in doing this?” Devlin queried. “So instead of a firm saying: ‘You do these 50 [pro bono] hours on top of the billable hours you’re meant to put in, … the firms could count these towards the billable hours for lawyers.”

Devlin said there is a dearth of solid information in Canada on the extent and nature of the pro bono legal work done by the profession.

“There’s no credible data base. There’s lots of anecdotal evidence,” he acknowledged. “But we don’t have any solid empirical foundation as to how much pro bono work is actually being done by lawyers in Canada — and that needs to be worked out in terms of how we define ‘pro bono.’ So if for example you’re doing pro bono work for your golf club — that really doesn’t qualify as pro bono [addressing] an access to justice problem, from my perspective.”

“My sense is some lawyers are doing a lot [of pro bono] and some lawyers are not doing that much, if any,” he added. “We need law societies to take a lead on this and for example ask, or … even mandate, lawyers to report how many billable hours that they’re actually giving [pro bono] per year and to what sort of organizations or groups. That would give us a starting point as to how much work we are actually doing pro bono.”

Adam Dodek

University of Ottawa law dean Adam Dodek

University of Ottawa law dean Adam Dodek had a different take on mandatory pro bono than his fellow expert on legal ethics.

“Leadership best comes from the profession rather than from the regulator,” he told The Lawyer’s Daily. “The creation of a pro bono culture in Ontario was the product of giants of the bar, like Roy McMurtry and David Scott, stepping up and challenging others to join them,” he pointed out. “Through Pro bono Law Ontario, they encouraged large law firms to embrace formal pro bono programs and recognizing pro bono hours as billable hours.”

He added that “naysayers raised law society regulation — specifically conflicts of interest rules — as a reason not to do pro bono work. The Law Society [of Ontario], to its credit, clarified its rules to make clear that participation in summary advice programs, like Law Help, would not create a conflict of interest.”

Dodek noted he was surprised to learn on a recent trip to California that a large Los Angeles law firm expects all of its lawyers, including equity partners, to spend at least 60 hours per year on pro bono work.

“This is part of their annual report for compensation purposes,” he noted. “If a lawyer — partner or associate — does not meet the 60-hour benchmark, he or she must explain why. When law firms place a value on pro bono in such a manner it succeeds in inculcating a pro bono culture much more than any law society regulation.”

In its rule titled “Making legal services available” the Model Code of Ethics of the Federation of Law Societies of Canada (FLSC), the umbrella group for Canada’s 14 legal regulators, obliges lawyers to make legal services available to the public “efficiently and conveniently,” but it does not say lawyers are obliged to do any pro bono legal work.

Rather, the rule’s commentary observes that “as a matter of access to justice, it is in keeping with the best traditions of the legal profession to provide services pro bono and to reduce or waive a fee when there is hardship or poverty, or the client or prospective client would otherwise be deprived of adequate legal advice or representation. The Law Society encourages lawyers to provide public interest legal services and to support organizations that provide services to persons of limited means.”

Under the rubric of Integrity, another FLSC model rule states that: “a lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions.” Lawyers are thus collectively encouraged to enhance the profession through such activities as participating in legal aid and community legal services programs or providing legal services on a pro bono basis; and acting as directors, officers and members of non-profit or charitable organizations.

Morgan Cooper

Morgan Cooper, FLSC’s vice-president and president-elect

Morgan Cooper, the FLSC’s vice-president and president-elect, told The Lawyer’s Daily that the influential organization “shares the chief justice’s concerns about access to justice in Canada. It is a complex problem that requires a multifaceted response.”

Cooper said the FLSC’s Standing Committee that is revising the Model Code of Ethics has put access to justice on the list of issues it is considering for discussion with member law societies as it continues to update the code.

The American Bar Association’s (ABA) Rule 6.1 stipulates under the rubric “Voluntary Pro bono Publico Service” that “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 publico legal services per year.”

In fulfilling this responsibility, the ABA says the lawyer should provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to: persons of limited means or charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and provide any additional services through delivery of legal services at no fee or substantially reduced fee to: individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate; to persons of limited means; or participation in activities for improving the law, the legal system or the legal profession.

The rule says that in addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

A 2011 ABA study revealed that nearly three-quarters of U.S. attorneys work pro bono and do so at almost three times the rate of volunteer work in the rest of the population (73 per cent versus 26 per cent). The average number of hours lawyers reported they worked pro bono was 56.5 hours. Most of the pro bono work was done for free rather than at reduced rates — and was conveyed through bar associations, public or private legal aid programs, or independent non-profit organizations.

Photo of Chief Justice of Canada Richard Wagner by Roy Grogan