Time for the civil bar to step up

November 24, 2018

Last week Pro Bono Ontario dropped the bombshell that they would be forced to shutter their offices in Toronto and Ottawa because of a $500,000 funding gap. Private funders, apparently, can no longer support the program. So, civil lawyers took to the opinion pages and social media to defend the little guy.

Our courts are full of little guys. The single mother who was improperly denied support payments. The immigrant who fell behind on rent and faces eviction by a predatory landlord. The working father who was wrongfully terminated. These are the clients that Pro Bono Ontario helps. These are the little guys will now be left to face the machinery of the legal system on their own.

And they will be chewed-up and spit-out.

There is no question that the people assisted by Pro Bono Ontario are all in dire straits. Many of Pro Bono’s clients suffer from poverty, mental health issues and social marginalization. But, there are also the middle class who can’t afford the high fees charged by the civil bar. 

The one thing every Pro Bono client has in common is that they can’t afford admission into the boardrooms of Bay Street. 

Pro Bono Ontario is a Band-Aid on the gaping wound that is access to justice – a problem driven by the fact that the fees charge by civil lawyers are simple out of reach for anybody but the well-off.

According to the results of Canadian Lawyer’s 2015 Legal Fees Survey, the average cost of a two-day trial was more than $30,000. An amount made even more obscene by that fact that this was an increase of 43 percent from the previous year. Hourly rates over $400 are not uncommon. And we wonder why there is an access to justice problem.

Law is, after all, a business and like any business, profit matters. “This year was a good year,” Eric Gossin of Toronto’s Stancer Gossin Rose LLP told Canadian Lawyer in 2018. “All of us seem to be achieving a higher hourly rate in terms of what we tell the clients we are charging.”

The solution to access to justice issues cannot just include Pro Bono Ontario. Civil lawyers need to take a hard look in the mirror and come to grips with the role they have played in creating the access-to-justice problem.

Simple put – civil lawyers need to lower their fees. It is great that some lawyers volunteer their time to Pro Bono Ontario – but more can and must be done. Self-congratulations over donating three pro bono hours every three months is simple not enough.

Last week I made this abominable suggestion on Twitter and was met with an immediate backlash. The arguments from the civil bar ranged from the absurd (Bay St. lawyers would not be competent to handle Pro-Bono-type cases) to the blissfully circular (but my hourly rates put me beyond the reach of non-wealthy clients).

Well then, civil lawyers perhaps you should – on occasion – lower your hourly rate. Stop by my office and I will show you how. 

There are lots of civil lawyers who do go above and beyond and who do generously volunteer their time and expertise. Good for them. But as a whole the civil bar needs to do more. They need to advocate for systemic changes in how their services are priced and delivered. And they need to start at their own firms.

“But there seems to be a comfortable lack of self-awareness on the part of the civil bar. It does after all take some gumption to record a video decrying the lack of funding for Pro Bono Ontario, as Advocates’ Society President Brian Gover did,from the Advocates’ Society’s conference held in Laguna Beach California.

The latest suggestion from the towers of Bay Street is the idea of a flat tax on Law Society fees to bridge Pro Bono Ontario’s funding gap. Another short-sighted plan. Why should young lawyers, many of whom have massive law school debts, who have just emerged from a cut-throat articling process, and who, by necessity, work almost for free subsidize a program that exists in large part due of the excesses of Bay Street?

Perhaps, as some have suggested, the government should step in to fund Pro Bono Ontario? After all, a 2017 return-on-investment analysis showed that, on a total budget of $600,000, Pro Bono Ontario saved the government almost six million dollars. But again, why should the government subsidize a program that exists because of Bay Street’s ridiculous fee structure? 

Carolyn Mulroney has said that the government would continue to provide Pro Bono Ontario with rent free space – just as the Liberal government did. But she went on to “encourage Pro Bono Ontario to work with its private-sector partners, Legal Aid Ontario, the Law Foundation of Ontario and the Law Society of Ontario to find solutions to its long-term funding issues.”

There is room for the government to invest in Pro Bono Ontario. But everyone needs to do their part. 

And a word of caution to the civil bar: it is a risky move to invite the government into a self-regulating profession – especially when, unlike in criminal cases, they are not a litigant. If civil lawyers cannot regulate their own fees would they suggest that the government should?

So, what is the solution?

Maybe next year’s Laguna Beach money could be donated to Pro Bono Ontario? Maybe each Bay Street firm could sell one of their valuable pieces of art to help Pro Bono Ontario? 

Or perhaps civil lawyers could commit to charging some clients a little bit less and commit to work towards structural changes that would ensure that it’s not just large corporations and the wealthy that have access to the courts.

But even then, there will be a need for Pro Bono’s services. Some of the people who need the type of justice that can only be found in the courts will not be able to afford it – at any price. 

But until civil lawyers take a hard look in the mirror not even the Band-Aid of Pro Bono Ontario will be enough to get access to justice system off life support.

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