Derived from the Latin phrase pro bono publico (“for the public good”), the term pro bono is an expansive one which covers a multiplicity of activities and approaches. The core pro bono activity involves providing free legal services to a client, subject to the same standards of performance and ethical obligations as apply to paying clients. In 1998 the Canadian Bar Association (CBA) adopted a resolution which provided that lawyers work pro bono when they “voluntarily contribute part of their time without charge or at substantially reduced rates, to establish or preserve the rights of disadvantaged individuals; and to provide legal services to assist organizations who represent the interests of, or who work on behalf of, members of the community of limited means or other public interest organizations, or for the improvement of laws or the legal system” (CBA Resolution 98-01-A).
Other activities and initiatives which might fall within a broader understanding of pro bono include: supervision of law students or junior members of the bar; volunteering with the law society, law foundation or professional association; sitting on the board of or providing financial contributions to a legal aid provider or pro bono organization; or working for reduced pay (sometimes referred to as “low bono”). That being said, the most meaningful approach to pro bono involves delivering legal services to those who cannot otherwise afford them and is directly connected to filling unmet legal needs.
The ethical obligation of lawyers to ensure effective access to justice is recognized in codes of professional conduct across the country. The commentary to Rule 2.08 of the Law Society of Upper Canada’s Rules of Professional Conduct states it is “in keeping with the best traditions of the legal profession to provide services pro bono” and that lawyers “should provide public interest legal services and should support organizations that provides services to persons of limited means”. The CBA has suggested that individuals’ lawyers should “strive to contribute 50 hours or 3% of billings per year on a pro bono basis” (CBA Resolution 98-01-A).
While there is overlap between pro bono and legal aid, pro bono is not intended to replace the legal aid system and they derive from different principles: legal aid, which involves government funding of payments to lawyers, is premised on a notion that individuals have a right to legal information and assistance; pro bono, by way of contrast, is rooted in conceptions of charity and professionalism. The rise of legal aid provision in the latter half of the 20th century resulted in a more systematic and efficient delivery of legal services than was possible with the traditional conception of largely ad hoc delivery of pro bono services by individual lawyers. However, the existence of one does not obviate the need for the other, and indeed the subsequent decline in legal aid funding from governments means that the need for pro bono is greater than ever.
The last two decades have seen a formalization of pro bono activities into a variety of organizations with permanent staff and infrastructure, such as Pro Bono Law Ontario and Pro Bono Students Canada. Such organizations facilitate the delivery of pro bono legal services, including by means of providing administrative support, client intake and screening processes and maintaining rosters of interested lawyers. As well, law firms are increasingly taking proactive steps to support the delivery of pro bono services by their lawyers, including the adoption of formal policies which recognize hours worked on pro bono matters, partnering with existing community-based legal service organizations and the creation and staffing of clinics at courts and hospitals.
* The foregoing is adapted from “Tension at the Border”: Pro Bono and Legal Aid (October 2012, Canadian