By Jamie Maclaren

October 30 2009 issue

Participation in pro bono programming is rising sharply across Canada as lawyers mobilize to mitigate the endemic problems of cost, delay and complexity in our justice system. Province-wide pro bono organizations now exist in B.C., Alberta, Saskatchewan, Ontario and Quebec. New pro bono organizations will soon emerge in the Maritimes and the Territories. Each pro bono organization — young or old — pursues the same basic mission: to increase access to justice through the provision of pro bono services to individuals of limited means. Each pro bono organization also operates according to the core principle that pro bono services should complement rather than substitute for a properly funded legal aid system.

The increasing vitality of Canada’s pro bono organizations should, on the one hand, inspire considerable pride among Canadian lawyers, since it reflects a pervasive spirit of benevolence and a healthy respect for the rule of law. On the other hand, it should raise considerable concern over the inability or unwillingness of governments and the profession to make our justice system more accessible, more equitable and more efficient. The growing complexity of our judicial processes calls for substantial reform, but it is no coincidence that the current decline in access to justice parallels the gradual dismantling of legal aid in most provinces.

It is the uneasy and sometimes antibiotic relationship between legal aid and pro bono that causes a regular conundrum for pro bono organizations. Wherever and whenever legal aid cuts are made, pro bono organizations are compelled to fill the resulting vacuum by deploying pro bono services of an inherently less dependable nature than their forerunners. Though this strategy invariably succeeds in increasing access to justice by serving otherwise unmet legal needs in the short-term, it alleviates some political pressure on governments to maintain or increase legal aid funding, and it arguably weakens the legal service delivery system in the long-term.

How then are pro bono organizations supposed to breathe life into the fundamental principle that pro bono services should complement rather than substitute for a properly funded legal aid system? The answer is likely implied by the principle itself: greater and closer integration of legal aid and pro bono. In most provinces, pro bono organizations operate in relative isolation from their legal aid counterparts. The pro bono organizations are much newer to the legal service field, and the potential fit of pro bono services within the greater and more established legal aid system is rarely obvious. Pro bono services are too often viewed as lesser substitutes for legal aid services, and hardly ever as vehicles for added value.

Thankfully, new opportunities for greater integration between pro bono and legal aid are beginning to emerge. Some law societies are relaxing restrictions around limited scope representation or “unbundled” litigation services. In B.C., for example, lawyers are permitted to engage in limited scope retainers for representation so long as the scope is well-defined and all professional conduct rules are respected.

Unbundling eliminates the restrictive “full service” or “no service”dichotomy and creates endless possibilities for collaborative public-private programming that is adaptable to urban, suburban, semi-rural and rural areas. It provides a potential referral outlet for legal aid overflow in the form of pro bono lawyers willing to carry on where legal aid lawyers have reached their mandatory limits. A legal aid lawyer, a pro bono lawyer and their common client could also work together to craft an efficient and neatly spliced series of unbundled tasks that takes advantage of their various proficiencies and capacities. If legal aid and pro bono programs found more ways to work together, a dynamic and cohesive cohort of community-minded lawyers would flourish over time.

Law schools and Bar training courses could also foster greater appreciation and understanding between legal aid lawyers and private practitioners by educating students in the theoretical and practical aspects of poverty law, family law, criminal law and immigration law that commonly intersect legal aid and pro bono practice. Such instruction would increase the capacity for young lawyers to provide pro bono services in support of legal aid, and it would lend credibility to the notion that pro bono service is a professional responsibility.

Legal aid and pro bono should be seen as mutually supportive systems, not simply as Plan A and Plan B. A measured integration of pro bono services into the legal aid framework would benefit low-income clients by offering a wider and more adaptive range of free legal services. It would also benefit the profession by increasing the overall cost-efficiency of serving clients and by providing solid moral ground for the argument that governments should increase legal aid funding.

The profession would then speak less from a position of self-interest, and more from a position of knowledge and investment.

Jamie Maclaren is a sole practitioner in Vancouver and the executive director of Pro Bono Law of B.C.