Canadian Lawyer

28 A p r i l 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m sufficient legal aid funding, the majority (60 per cent) felt they could, while a quarter disagreed and the remainder did not know. On the survey, a corporate/commercial lawyer working for a full-service regional firm in Alberta said he feared pro bono work gave the provincial government "yet another reason to shirk its legal aid responsibilities." In contrast, a real estate lawyer from Manitoba doubted legal aid would ever be available for certain types of services lawyers are willing to do pro bono, while another respondent argued: "Stopping pro bono work is not going to make them any more willing to pay for legal aid." The strength of feeling on both sides of the debate may provide pause for thought among those who want Canada to follow in the footsteps of New York state, which by 2015 will require anyone sitting its bar exam to show they have completed 50 hours of pro bono work. One in five survey respon- dents believed lawyers should have a mandatory obligation to provide pro bono services, while 73 per cent disagreed and seven per cent were unsure. A quarter felt law- yers should be forced to report the hours spent on pro bono work each year, two-thirds disagreed, and nine per cent did not know. "Charity should be a voluntary matter, not something pushed into one's face," said a family law- yer from Ontario. A labour and employment lawyer from a full- service Ontario firm stated: "To make it mandatory will mean shoddy work without compassion." Others pointed out other profes- sions were not forced to work for free, while some suggested a man- datory obligation would be unfair to small firms. One said lawyers who chose not to perform pro bono services could instead donate to a central "access to justice fund." There is also uncertainty over the definition of pro bono. Should it include legal aid work that is not fully compensated, clients who fail to deliver agreed fees, and vol- unteering on the boards of non- profits? One of the major criticisms of the New York scheme has been the way it places the burden for helping vulnerable parties on debt-laden law students and recent graduates with sky-high billable hour targets, rather than on senior, better-paid members of the profession. Mandatory pro bono at law schools could also end up "imposing a burden on students who have other pressing obligations, includ- ing those who are in school part time, have families, [or] need to work part time to pay for law school," says Nikki Gershbain, national director of Pro Bono Students Canada. But she points out, as a self-regulating profession, the legal industry must find a way to serve those who would otherwise be excluded: "If legal fees are so out of reach that the average person doesn't have access to the justice system, we have an obligation to fill gaps in the system by requiring the profes- sion to step up to the plate," she says. Of course, there are often sound busi- ness reasons for taking on pro bono work and, in general, survey respondents said their firms encouraged it. Just over a fifth said their firm "strongly encouraged" pro bono work and a third said it was encour- aged "to some extent." A much smaller pro- portion — eight per cent — said their firm actively discouraged it, and a third said it was neither encouraged nor discouraged. There are ways firms can make it easier for their law- yers to do pro bono work, such as taking it into account when calculating billable hours tar- gets. Many larger firms do this, according to information sup- plied to Canadian Lawyer (see page 32), though it seems to be less com- mon for partners than associates. The amount of time lawyers spend on pro bono files varies significantly between firms, from an annual 12 to 24 hours a year for associates and 10 to 120 hours for partners, the data shows. Lucas Lung, a partner with Lerners LLP, was permitted to devote up to 40 per cent of his practice to pro bono files in his first year at the firm. It helps when firms have speedy processes for approving pro bono requests, he says. At a previous firm, his request to work on an immigration pro bono case took so long to be approved "the guy just disap- peared," says Lung. Publicity is undoubtedly one poten- tial business benefit to take into account. Toronto litigator Kevin Toyne found him- self at the centre of a media storm after taking on the case involving Darwin the monkey, who gained international fame in 2012 after being found wandering around a local IKEA parking lot wearing a shearling coat. The Brauti Thorning Zibarras LLP pro bono CASe STuDIeS Georgialee Lang F amily lawyer Georgialee Lang spent many months making repeated 1,500-km round trips from her Vancouver home to the polygamous community in Creston, B.C., to help victims of jailed religious leader Warren Jeffs. Over the years, Jeffs had issued a number of decrees to his followers, including that mothers should not touch their children and banning sexual relationships between spouses. From his cell, he ruled some men would be ex-communicated without access to their wives or children. Lang acted in eight separate cases, leading to all the men obtaining joint custody of their children. She had to pay for flights out of her own pocket, and says not all the clients seemed to appreciate she was offering her expertise for free. But she found the experience very worthwhile. "It was fascinating to meet some of these people," says Lang. "They're such a secretive community." The case was particularly timely, since B.C. Supreme Court Chief Justice Robert Bauman had recently ruled on a polygamy reference.

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