Toronto Star

Sunday, January 31, 1999

Lawyers urged to work for free

By Tracey Tyler, Toronto Star Legal Affairs Reporter

Everybody's doing it. . . . Working for free, that is. Across Ontario, lawyers in every field of practice say they are doing large amounts of pro bono work - providing legal assistance to the disadvantaged at no charge.

And Ontario Chief Justice Roy McMurtry is urging them to do more, giving rise to inevitable questions about whether pro bono work should become mandatory.

``I guess my gut reaction is no. I don't think to say to someone, `Thou shalt be a good Samaritan' is necessarily the way to go,'' said Toronto lawyer Robert Armstrong, head of the Law Society of Upper Canada's legal aid committee.

He does, however, support McMurtry's statement.

In the United States, some lawyers are required to file annual reports stating whether they reached an ``aspirational goal'' of at least 30 hours of free legal services, or opted for a payment of at least $350 to a legal aid organization.

A mandatory reporting requirement that has been in effect in Florida since 1993 has proven to be valuable, said Steven Scudder, staff counsel to the American Bar Association's standing committee on pro bono and public service.

In 1996-97, the last fiscal year for which statistics are available, the reports set out 842,305 hours of legal work done by 59,000 lawyers on a volunteer basis, and $1.4 million in contributions to legal aid organizations, said Park Trammell, a spokesperson for the Florida State Bar in Tallahassee.

The trend has been toward more pro bono work. In the first year of reporting, 31 per cent of lawyers did not volunteer services. By 1996, only 22 per cent did not, said Trammell, adding that the reporting system stretches back to a 1974 report that found that legal help available for indigent Floridians didn't meet demand.

The definition of pro-bono work varies. It could be as glamorous as taking a high-profile case to the Supreme Court of Canada on behalf of a non-profit group, or as routine as defending someone on a driving charge in provincial court.

In the U.S., some lawyers count volunteering with Little League baseball teams or sitting on the board of their local ballet company as pro-bono work, but that's really a stretch, says Scudder, of the American Bar Association.

Speaking to the Canadian Bar Association in Toronto last week, McMurtry said the justice system's biggest challenge is ensuring legal help is available for the growing number of people showing up unrepresented in the province's courts.

In an earlier speech, McMurtry had said he was encouraged by a bar association resolution calling on lawyers to donate 50 hours - or 3 per cent - of their billings to pro bono work each year.

In Ontario, defence lawyers fully support McMurtry's comments, said Alan Gold, president of the Criminal Lawyers Association.

He said he would ``venture to say'' the amounts suggested are already performed by many defence lawyers, who have a long tradition of doing work pro bono.

But in Florida, Scudder said, mandatory reporting can be useful in getting lawyers who might not otherwise take pro bono cases to think about what's unofficially expected of them.

``The rule itself is about more than just reporting,'' he said.

So far, Florida is the only state with mandatory reporting, Scudder said. Five other states have considered but rejected it.

Another 12 states have voluntary reporting, but the response rates are fairly low. Hawaii and New Mexico are the highest, at about 33 per cent, compared to only 8 to 10 per cent of lawyers filing reports in Louisiana and Georgia, Scudder said.

``For the purposes of generating interest and focus on pro bono, it has proven to be a useful mechanism,'' he said. ``Voluntary reporting is inexpensive and not a burden.''

Like McMurtry, several years ago Sol Wachtler, a former chief justice of the New York State Supreme Court, expressed concern about lawyers not doing enough pro bono work, Scudder noted.

But the notion of mandatory pro bono service was eventually rejected in New York and several other states over concerns about forcing someone to ``volunteer.'' Some lawyers have contended it would amount to involuntary servitude.

``Lawyers all say they support it (pro bono service), but people don't like to have the whip cracked at them,'' Scudder said. ``On the other hand, some say if it's not mandatory, it won't get done.''

To Steven Rosenhek, president of the Canadian Bar Association-Ontario, filing reports is not as important as making sure lawyers and their employers understand that pro bono work ``is part and parcel of a lawyer's job and responsibilities.''

At his firm, McCarthy Tetrault, pro bono work is regarded as ``an essential part of a lawyer's responsibility,'' but it's left to the individuals' discretion to determine how their services will be provided, he said.

Are pro bono efforts restricted by heavy expectations that lawyers will work a certain number of billable hours?

``One has to keep a reasonable balance between providing services for paying clients and providing pro bono services,'' Rosenhek said. ``One wouldn't be doing it to the exclusion of all other work.''

Meanwhile, notes Gold of the Criminal Lawyers Association, services can be provided pro bono even when lawyers get paid.

In a 1989 decision, the Supreme Court of Canada recognized that the Ontario Legal Aid Plan has ``an implicit pro bono component,'' Gold said, since the fees it pays run 25 to 50 per cent less than what a top criminal lawyer would charge.

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