Whether you’re a lawyer or not, you may have read about Chief Justice Wagner’s recent suggestion that lawyers should be required to do a certain number of pro bono (free) legal work each year. While this was framed as an access to justice solution, it gives me pause.
MY FIRM POLICY
As a general rule, Molyneaux Law doesn’t do pro bono work. And, I don’t think other lawyers should do so either- at least not without serious thought.
First and foremost, as a lawyer who has dedicated her practice to supporting workers’ rights, I believe that labour deserves fair compensation. This includes my labour and my staff’s labour.
My rates reflect a number of factors: my knowledge and experience, my costs of living, and my business expenses.
My expenses include re-paying my student debt as well as substantial professional fees. They also include the cost of walking the walk: I pay a living wage and offer paid sick days, since I know that the minimum employment standards don’t provide healthy work with dignity.
My knowledge and experience arise from a legal education, training and practice focused on union-side and plaintiff-side labour, employment and human rights work. Often, my clients are marginalized and of limited means. But, I know that I couldn’t be as good a lawyer if my fees weren’t covering my own bills. I work to balance my client’s financial realities with my own, while providing them with high quality service.
Unfortunately, I know that not every prospective client can afford my legal fees. When appropriate, I refer these clients to lower-cost paralegal services, more junior counsel or legal aid. And, I routinely offer free public legal education seminars to help people avoid serious legal trouble in the first place by better knowing their rights and obligations.
PRO BONO PRESSURE IN THE LEGAL PROFESSION
At the same time, pressure to work for free- or worse, the requirement that every member of our profession work for free- disadvantages and excludes marginalized lawyers or would-be-lawyers. While the stereotypical lawyer is a Harvey Spector type character who won’t miss a few thousand dollars a year, the typical lawyers is a sole or small practitioner living in a smaller city or town. Her rates are lower, even if some of her costs are fixed at the same rates as a Bay Street lawyer (tuition debt, licencing and insurance fees, for example, aren’t geared to income or geography). She would feel the loss of a few thousand dollars a year incurred through mandatory free labour. And, lawyers who are from working class families or are newcomers, racialized, Indigenous, disabled and/or women, feel it more since they rarely get to start on a socio-economic playing field that is level with middle- or upper-class straight, white men (i.e. the Harvey Spector). (Here’s a good article on this issue: link)
These costs to members of our profession aren’t the end of the conversation, though.
Pro bono work is at best a band aid solution for the access to justice problem. Firstly, many people will just never be able to access pro bono representation even if every lawyer had to take on a pro bono file. The need is too great, and the way lawyers or law firms choose what cases to take for free is too discretionary. Secondly, it doesn’t guarantee representation by a lawyer with skill and experience in our system’s greatest areas of need: mandating that corporate lawyers do pro bono work each year won’t flood our criminal courts or human rights tribunals with skilled advocates experienced in those unique, high-stakes practice areas. Instead, it risks encouraging lawyers to dabble outside of their practice areas to make them or their bosses feel good – or else continues to leave the representation gap unaddressed at all.
ACCESS TO JUSTICE SOLUTIONS
That’s not to say that legal representation should never be free to a client. I believe strongly in a robust legal aid system, in which lawyers are paid through taxes to provide free and high-quality representation to clients in need.
I also believe in affordable representation, which is why I think we need greater regulation of law school tuition and loan forgiveness programs. It’s hard for recent graduates to charge less, while paying back $100,000 plus interest in a timely fashion.
Like many social problems, high legal fees and growing rates of self-represented litigants call on us to take a big picture approach.
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