Should the Canadian Legal Profession Embrace Mandatory Pro Bono Work as a Pillar of Increased Access to Justice?

As a law student at the University of Saskatchewan, one of the most compelling ways to get involved in the Saskatchewan legal community is by volunteering with Pro Bono Students Canada, which operates its Saskatchewan chapter out of the College of Law. Last year I had the pleasure of working on a volunteer project with the Saskatchewan Association for Community Living, and feel as though I gained a great deal of knowledge and practical experience that I will undoubtedly put to use in my future legal career.

This year, a lot of the work I am doing for the Saskatchewan Law Review revolves around the timely issue of access to justice. The access to justice problem in Canada has been described by Chief Justice Beverley McLachlin as “the most pressing challenge facing the administration of justice in this country,”¹ as well as a dilemma “that imperils the public’s confidence in the justice system.”² This is certainly not idle criticism, especially coming from the woman plenty of people rightly consider to be one of, if not the top authority on any and all legal topics in Canada. In my view, pro bono work can provide at least part of the answer to the present access to justice quandary, especially given its present state of relative acceptance and encouragement in the Canadian legal profession.³ I would, however, go one step further than the simple encouragement of pro bono work and suggest that firms and law societies should draft and implement policies that mandate a minimum yearly amount of pro bono hours for all practicing lawyers. The rationale behind this position is that the legal profession is both privileged and service-oriented. Lawyers hold a monopoly over the provision of most legal services in Canada, and consequently have a moral duty to ensure that they are actively promoting adequate access to the legal system, especially for those otherwise unable to afford legal services. This is a position not without precedent in Canada.⁴

Today, pro bono work, that is, legal services rendered in a spirit of charity, without expectation of a fee,⁵ is strongly encouraged by the governing bodies of the Canadian legal profession. It is not mandated, however, and specific numerical targets for hours to be spent on pro bono files do not exist.⁶ Even though that is the case, the idea of policies requiring mandatory pro bono work is not especially novel. Numerous academics have noted the possibilities of such policies in broader discussions about pro bono work in general or the aforementioned access to justice issue.⁷ In addition, programs of required pro bono work for lawyers in American jurisdictions have been pointed to as examples of what could be possible in Canada with a more unified approach.⁸ If implementation of mandatory pro bono requirements were impossible, I do not think that they would be discussed so often. I get the sense that part of the aversion to the idea of mandatory pro bono work on the part of law societies and other governing bodies of the profession is because of a culture that favours the status quo over changes that may be seen as fundamental shifts in thinking. It is this “culture of complacency” that the majority judgment referred to in R v. Jordan,⁹ a recent decision of the Supreme Court of Canada concerned with the Charter right to be tried within a reasonable time. Perhaps needless to say, I am of the opinion that an argument against mandatory pro bono policies on the basis that the legal profession has never implemented such policies before does not hold water. It is circular reasoning.

In my view, a stronger argument in favour of mandatory pro bono work for practicing lawyers across Canada can be made if lawyering is understood and interpreted as a service-oriented profession, not a business. Of course, it is obvious that many aspects of the practice of law have commercial characteristics. Lawyers provide legal services primarily as a way of making a living and it would be unfair to discount or minimize this aspect of the profession. At the same time, as Brent Cotter indicates, the fact that lawyers often make such good livings and enjoy a certain degree of “public trust” with regard to the practice of law supports the notion that they should be made to give back a certain amount of their time to provide legal services to the disadvantaged without expectation of pay.¹⁰ The use of the phrase public trust suggests that lawyers are expected on a societal level to be reliable authorities in terms of their examination and interpretation of the law. In other words, they hold a privileged position with respect to the services they supply to the public. Consequently, they are expected to supply those services in a manner that warrants and justifies the level of trust society places in them. This is how the practice of law may be seen as a service-oriented profession. Lawyers are providing a service to the public, a group which cannot often engage with the law on the level that lawyers are able to, given their specialized knowledge and experience. Of course, the rules and regulations of law societies that prevent unlicensed individuals from practicing law also factor into this view of the legal profession.

An interpretation of the legal profession as privileged and service-oriented provides a strong foundation from which the benefits of mandatory pro bono policies can be enunciated and defended. Given the importance of public confidence to the administration of justice, the Canadian legal profession should not be content to simply carry on with the status quo. The access to justice crisis strongly indicates that the status quo has become unworkable. Merely encouraging pro bono involvement is not enough. Law Societies must demand a higher standard of engagement from lawyers. While mandatory pro bono work will not solve the issues surrounding access to justice in this country, it is certainly a start. If lawyers do not take the lead in reevaluating the way that the profession is currently conducted, who will?

^* BA Hons (University of Saskatchewan), JD Candidate (University of Saskatchewan). Any errors are my own.

¹ Canada’s Top Judge Slams ‘Inaccessible Justice’” CBC News (18 August 2013), online: <http://www.cbc.ca/news/canada/saskatoon/canada-s-top-judge-slams-inaccessible-justice-1.1306993>. The article paraphrases McLachlin CJC’s remarks to the annual meeting of the Canadian Bar Association in 2013.

² Joanna Smith, “McLachlin on Access to Justice, Sexual Assault and Bilingualism on the Bench” Metro (11 August 2016), online: <http://www.metronews.ca/news/canada/2016/08/11/mclachlin-on-access-to-justice-sexual-assault-and-bilingualism-on-the-bench.html>.

³ The Canadian Bar Association, “Resolution 98-01-A: Promoting a Pro Bono Culture in the Canadian Legal Profession” The Canadian Bar Association, online: <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/LLR/98-01-A.pdf>.

⁴ See e.g. Lorne Sossin, “The Helping Profession: Can Pro Bono Lawyers Make Sick Children Well?” in Alice Woolley et al, eds, Lawyers’ Ethics and Professional Regulation, 2nd ed, Law and Society Series (Vancouver: University of British Columbia Press, 2016) 150 at 152.

⁵ Pro Bono Committee of the Law Society of Alberta, “Pro Bono Publico—For the Public Good” The Law Society of Alberta at 5, online: <http://www.lawsociety.ab.ca/files/pbla/Pro_Bono_Publico_For_The_Public_Good_2003.pdf>.

⁶ Ibid at 6; Law Society of Saskatchewan, Code of Professional Conduct, Regina: Law Society of Saskatchewan, 2016, at r 2.1-2 and 4.1-1, including commentary; The Canadian Bar Association, supra note 3.

⁷ See e.g. Brent Cotter, “Thoughts on a Coordinated and Comprehensive Approach to Access to Justice in Canada” (Panel following The Viscount Bennett Memorial Lecture delivered at the Faculty of Law, University of New Brunswick, 27 October 2011), (2012) 63 UNBLJ 54 at 61-62; Adam Dodek, “Mandated or Mandatory Pro Bono” Slaw (3 May 2012), online: <http://www.slaw.ca/2012/05/03/mandated-or-mandatory-pro-bono>; Sossin, supra note 4 at 152.

⁸ Dodek, ibid.

⁹ 2016 SCC 27 at para 4, 398 DLR (4th) 381.

¹⁰ Supra note 7 at 61.