Canadian Lawyer

30 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 panicked leafing through CLE practice manuals and a lot of Google searches," admitted a B.C.-based lawyer. Others some- times sought advice from other lawyers in their firm. Is there a risk of lawyers accidentally harming clients by straying away from their comfort zones? The CBA's 2012 paper, "Tension at the Border: Pro Bono and Legal Aid," notes it "may well impact the quality of legal help offered." However, it adds: "One response is that the underlying rationale of pro bono is that the good should not be the enemy of the best, in other words, that some legal help is better than none at all." It's important for lawyers to reflect on the value they can realistically add to a pro bono file, says Lung. For example, one case he worked on involved 23 interveners and several Bay Street firms. "There were lots of conference calls between counsel to make sure we weren't saying the same thing. The important thing is whether we're actually making a contribution," Lung argues. There's a danger some firms view pro bono work as a "profile- building" exercise rather than a chance to help the community. The majority (85 per cent) of lawyers at national law firms seemed to share Lung's cynical view, believing pro bono work was primarily viewed by their organization as a chance to raise its profile. This came before the desire to give back to the com- munity, which 76 per cent said was behind their firm's interest in pro bono work. Nearly three-quarters said their firm saw pro bono as a recruitment and retention tool. But there are also countless examples of pro bono work that fly below the radar. In 2005, following a period of illness, Lang opened a legal clinic in eastside Vancouver, which she ran at the same time as running a busy practice and managing three other lawyers. "I was so grateful for my health and what I had, it was a way to give back," she says. Most of her clients were poor or suffered from mental illnesses. In Karn v. The Queen, Patrick Lindsay and Locklyn Price, lawyers at Borden Ladner Gervais LLP in Calgary, successfully overturned the Canada Revenue Agency's position that denied a mother a tax deduction for tuition paid on behalf of her learn- ing-disabled son. The CRA's stance affects hundreds of families, says Lindsay, but "most of the parents just end up walking away from it, which is unfortunate because it's clearly allowed under the law." The decision set a helpful precedent, and the pair have since helped to settle around 10 other appeals. There are certain factors lawyers may wish to consider before throwing themselves into a pro bono case. Firstly, it is important not to underestimate the resources that may be needed. Fighting the Karn case took "an awful lot of time," involving expert witnesses and medical practitioners, says Lindsay. For smaller firms with little or no financial cushion- ing, the costs may become a strain. In the IKEA monkey case, the court awarded costs; Toyne will not reveal how much of this was returned to the firm, but says he subsidized significant expenses out of his own pocket. One respondent recommended asking the client to carry out "as much of the groundwork and photocopying as possible," to reduce disbursements. "They feel more involved and empowered, and less of your time is used," said the New Brunswick lawyer. Many other survey respondents flagged that pro bono clients pro bono CASe STuDIeS Kevin Toyne K evin Toyne successfully represented the respondents in Nakhuda v. Story Book Farm Primate Sanctuary. The Ontario Superior Court awarded custody of a monkey found wandering around an IKEA parking lot to the sanctuary, against the wishes of his former owner. The case made headlines around the world, alongside pictures of Darwin the monkey dressed in a coat and diaper. "I thought it would be maybe a day in court, I'd answer a couple of media questions, and the case would be over," says Toyne. "It literally consumed my practice for months." Toyne says he was motivated by the risk the sanctuary would be financially decimated if it lost. "There are lots of non-profits, it only takes one piece of litigation to destroy them," he says. The case was also "a chance to litigate on an issue that hasn't been litigated on in Ontario for almost 100 years," he adds. Darwin's former owner has filed an appeal; a hearing date had not been set at press time. Pro bono work is among the most rewarding aspects of my job. I shouldn't be expected to work for free. Lawyers have a duty to provide some services on a pro bono basis. My organization should do more to promote pro bono work. I've been taking on fewer pro bono files as the economic climate has got tougher. 28.7% 39.5% 52.2% 15.3% 15.3%

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