“Lawyers do more pro bono work than any other profession”. Why Pro Bono Will Not and Can Not Save Us from the A2J Crisis

“Lawyers do more pro bono work than any other profession”. Why Pro Bono Will Not and Can Not Save Us from the A2J Crisis

I have many times heard lawyers make the following statement (often with some irritation or a measure of defensiveness)

“You know, lawyers do more pro bono work than any other profession.”

Accepting that it is indeed true that some lawyers are remarkable in their commitment to pro bono services, either as part of their private practice or as salaried employees of public legal services, I think this statement needs probing a little further.

There is a feeling of “let them eat cake” like about this statement that I confess has always troubled me, while not wishing to minimize the important work that some lawyers offer pro bono.

And so because How We Think About Change includes even our most sacred topics, once more into the fray go I.

1.             Is this statement accurate?

Do lawyers in fact offer “more” pro bono services than any other profession?  It is indeed rare (although not unheard of) to hear of accountants or realtors or mental health professionals (for example) offering free services, other than perhaps to charitable organizations.

Some private law firms “encourage” pro bono service (however there is no data that I can find that documents just how much of this work is actually done). Of course, it is difficult in practice for many young associates to meet their billable hours and to do pro bono work (however much they may wish to) unless these are “counted” as billable hours (not always the case).

There is a widespread belief that lawyers are “required” by their provincial associations to do some pro bono work. In reality the Codes of Conduct offer only vague admonitions to offer pro bono services in “appropriate” cases (none of which appear to prevent the ease with which so many lawyers now get off the record when their client becomes impecunious) – and only Alberta’s code describes pro bono work as an “obligation”.

The Canadian Bar Association Pro Bono Committee passed a resolution in 2003 that lawyers “should strive to” offer 50 hours of pro bono service each year, or 3% of yearly billings. OK….

So there appears to be no data that confirms the accuracy of this assertion one way or another (if anyone does have some, please let me know/ post it on the blog).

2.             Why do lawyers do pro bono work?

Some would say that the reason lawyers are in a special category when it comes to doing pro bono work (if indeed they are) is because law is a vocation, not a business.

This claim – also made frequently – highlights an apparent schism in the profession between those who regard their work as a vocation and those who regard it as a business.

But to be fair, this choice is hardly a binary one, and depends a great deal on personal circumstances. Recent graduates carrying $70,000 of student debt – and lawyers who are just making a living and have dependents to support – may find themselves on the “business” side of the divide, even if their aspirations or original motivations were different. While they may have been enthusiastic participants in Pro Bono Canada as law students – enabling them to gain valuable experience (see below at (4))– once they are in practice most are pretty focused on trying to pay off that debt load.

3.             Why do we need so much of it?

Now we are getting to the crux of the issue. We know that most middle income Canadians cannot afford to pay for a lawyer over the course of a protracted dispute (or even a shorter one). Indeed, the lawyers who were representing themselves in my study told me that they could not afford themselves.

How many other professions – perhaps offering less pro bono service than lawyers – can say that up to 50% of their domestic clients may run out of money before they have finished serving them?

Perhaps the reason we hear less about pro bono mental health services or pro bono accountancy or pro bono real estate services is because legal services are less affordable than those other services?

The average hourly rate for a lawyer in Canada in 2013 ranged from $193 for new calls to $375 for those called more than 20 years ago (source: Canadian Lawyer, June 3 2013). According to my brief survey, the hourly rate for a clinical psychologist is between $160-175 an hour, regardless of experience. Accountants charge up to $300 an hour but delegate much work to bookkeepers within their firms (the accountant’s para-legal?) who are charged out at up to $80 an hour.

It also seems likely that legal services are less open to negotiations over pricing and have more restrictive payment structures (the traditional retainer being one) than many other professions.

So even if the original assertion that lawyers do “more” pro bono work than any other profession is accurate – this may be a case of “be careful what you wish for.” Because perhaps the reason that lawyers do the most pro bono work – if they do – is because they are so darned expensive.

4.             How good is pro bono service?

Some of the SRLs I interviewed for my study spoke highly of the assistance they had received from pro bono organizations. Duty counsel in particular came in from especial credit. So did services provided by some free legal information programs (oh wait, those aren’t lawyers…)

However, a significant number of consistent complaints appeared in their accounts. These included:

  • I was promised a lawyer to assist me but none materialized and eventually they (the pro bono agency) told me that they did not have anyone available who could help me
  • I was assigned a lawyer to help me pro bono but they were unfamiliar with the area of law/ inexperienced/ too busy with other paying cases to see me
  • I was assigned a lawyer but s/he said that she could not come to court with me – and that was where I needed the most help
  • I qualified for a single (30-45 minute) summary legal advice session, but at the end of that session I had even more questions than before, and was really confused. I wasn’t even sure what my next steps should be now that I was back on my own.
  • I asked or assistance at a pro bono organization but I was told that I did not qualify because of my income (embarrassing/ surprising to me since I have such a very low income) and instead I was given the phone numbers of some local (private) lawyers.

5.             What are the alternatives?

In facing the access to justice crisis, we cannot hide behind the assertion that “Lawyers do more pro bono work than any other profession”.

Our pro bono tradition is not going to save us here. It is at best – at least in its present iterations – a band-aid solution.

Neither the present model of private pro bono – how many of us can afford to work for free how much of the time? – nor the structure and existing resources of public legal services (provide duty counsel for everyone who comes self-represented these days to family court? Not possible) can make a significant impact on the systemic problems that have created the access to justice crisis.

Instead we need new ideas. The recent development of so-called low bono services is one obvious alternative (see for example http://www.slaw.ca/2012/04/30/pro-bono-meets-low-bono-at-big-bc-law-firms), but this requires the commitment of the really large firms and inevitably raises concerns about second-class services.

And there are other ways we can think about the restructuring of pro bono services – more legal information (provided by non-lawyers), more coaching services by both lawyers and non-lawyers, modernizing our assumptions about the summary advice model (which still assumes the goal is case appraisal in order to decide whether to hire a lawyer –commonly no longer the case), more fixed rate service packages (other professions can do this), cheaper overhead and lower hourly rates.

Ideas? Experiences to share? Comments? Expressions of outrage? Please write on our blog (and for some more questions to engage your colleagues, friends, the cab driver in discussing how we think about change, see this week’s Water Cooler blog.)

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