The Advisory: Volume 10, Issue 3, July 2012

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Ethically Speaking:

Should Pro Bono Be Mandatory?

By Ross McLeod, QC, Practice Advisor, Law Society of Alberta

On May 1 this year, the New York State Bar announced that it would require new applicants to perform 50 hours of pro bono service before admission to the bar.

The announcement has duly spawned a whole range of responses. One commentator felt that the requirement was disproportionately unfair to new graduates who lack experience, are burdened with huge student debt and face irrational billable-hour demands from their employers.

Lawyers already licensed by the state are encouraged, but not required, to carry out pro bono service.

Another author thought that the wrong slice of the professional demographic was chosen to set the example. Mandatory pro bono is also argued to be unworkable and unenforceable. There are no law jobs available anyway, stated one student blogger.

Code of Conduct Encourages Pro Bono Service

Alberta lawyers can be justly proud of the work done by the local pro bono clinics, Volunteer Lawyer Service and Pro Bono Law Alberta (PBLA). Last summer, PBLA organized a tour of volunteer lawyers to travel to Slave Lake following the devastating wildfire that destroyed one third of the town.

Earlier this year, lawyers and law firms overwhelmingly supported a new duty counsel initiative in Provincial Court Civil Claims. But none of this means we can assume that the huge demand for legal services to the very poor is being met in this province.

Like New York, the Alberta Code of Conduct encourages pro bono service for practising lawyers. In an article contained in her 2000 book, Ethics in Practice, American scholar Deborah Rhode recognized how lawyers intended to talk the talk but not walk the walk when it comes to pro bono. Codes... “have long advised attorneys that they have obligations to assist individuals who cannot afford counsel yet the percentage of lawyers who actually do so has remained dispiriting wee small.” Rhode goes on to discuss how best to instill “a culture of commitment” in the profession.

Pro bono is not, she emphasizes, charity. It is an ethical duty, a professional responsibility, bound up in the regulated monopoly on the provision of legal services. And it’s not about providing free legal work for relatives.

Access to justice is a fundamental need, especially for the poor “who often depend on legal entitlements to meet basic needs such as food, housing, and medical care.”

Public confidence in the administration of justice and the profession depend on fair and equal access to law. If lawyers are not stepping up to their ethical duty to do pro bono, legal regulators may well consider compelling them to do it.

Pro Bono Clinics Routinely Offer Training

Although she does not recommend mandatory pro bono, Rhode does marshal some of the arguments for and against. She quickly dismisses the argument that requiring pro bono contributions infringes a lawyer’s own rights and amounts to the imposition of a sort of slavery.

A more subtle argument against mandatory pro bono is that the lawyer who is compelled to serve will be ineffective compared to the lawyer who is enthusiastic, engaged and interested in helping the truly poor to access justice.

Competency of the pro bono lawyer is a weak argument under a mandatory or voluntary regime.

However, it is argued that the high-priced corporate lawyer has little knowledge of residential tenancy or basic immigration law. But if the law is too complex for the highly specialized lawyer, then how can we expect the thoroughly disadvantaged poor to find their way through it?

Pro bono clinics routinely offer training for volunteer lawyers and, in any event, many lawyers are always looking for ways to satisfy their continuing legal education requirements. We can learn.

Mandatory or voluntary, it is a weak argument to say that a pro bono requirement is unenforceable. Billable-hour inflation easily translates into non-billable pro bono inflation. That is, however, beside the point.

On the other hand, mandating pro bono would effectively reinforce the message that pro bono is a professional responsibility and not charity.

Nor is pro bono a substitute for a wellfunded legal aid system. But, if pro bono was mandatory, could the law firm pay cash instead of supplying service?

It may be that some clients need money more than anything a lawyer can do for them, but the offer of legal services “honors the client’s human dignity in a way that cash on the barrel head never can,” says Georgetown law professor David Luban in his 2007 book, Legal Ethics and Human Dignity.

Need for Pro Bono Services Continues to Grow

No appetite exists in Alberta to impose mandatory pro bono service, although the mandatory option will always be available.

The Law Society’s centennial project to create and fund PBLA has gone a long way toward generating a “culture of commitment” among Alberta lawyers.

However, the need for pro bono services continues to grow. The volunteer resource within the profession has hardly been tapped and much more needs to be done. Lawyers and law firms should look for opportunities and not wait for PBLA to come calling.

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