Pro bono policies entrenched: Approved free legal work now carries the same weight as billable hours at Bay Street's big law firms

Beth Marlin
Financial Post
12 January 2005
National Post FP12

(c) 2005 National Post . All Rights Reserved.

A kinder, gentler sensibility appears to be taking root at the institutional core of many of Canada's most powerful Bay Street law firms.

Known more for their sweatshop culture, in which the number of billable hours can make or break an associate's hopes for a coveted partnership, seven of Toronto's biggest firms have recently announced new policies that not only encourage lawyers to do more free legal work for those in need, but -- quite radically -- also gives pro bono hours the same credit as chargeable hours in calculating their paycheques, bonuses and partnership points.

And, in the coming year, many more law firms are planning to introduce similar policies to formalize -- and put their money where their mouth is -- their support for the pro bono legal work that many of their lawyers have been doing on their own time for years on behalf of needy community groups and individuals not otherwise covered by legal aid.

"Our firm has adopted a policy that, for approved pro bono work, the associates will have their time treated as equal to billable time," says Paul Schabas, chairman of the pro bono committee at Blake Cassels & Graydon LLP. "It's an enormous step, but it's a critical step to showing a commitment to pro bono work."

Other major firms that set up pro bono approval committees and more formal policies of a similar nature during 2004 include Borden Ladner Gervais LLP, McCarthy Tetrault LLP, Ogilvy Renault, Torys LLP and Baker & McKenzie. Gowling Lafleur Henderson LLP also began giving full credit to approved pro bono work just a few years ago, although the firm has no plans to set up a formal pro bono approval committee. Even Osler Hoskin & Harcourt LLP, which introduced its community law program 15 years ago, only formalized their policy giving full credit to approved pro bono hours worked a few years ago, says Brian Morgan, chair of the firm's community law committee.

Credited with driving this trend is Pro Bono Law Ontario, an organization that is strongly endorsed by Roy McMurtry, Chief Justice of Ontario, and serves as a broker to match up public service organizations and legal clinics that need free legal services with qualified lawyers willing to provide them. "Prior to launching Pro Bono Law Ontario in January, 2002, none of the firms had formalized pro bono programs," says Lynn Burns, executive director of Pro Bono Law Ontario.

Previously, says Ron Manes, a founding member of PBLO's board of directors and managing partner of Torkin, Manes, Cohen & Arbus LLP, "pro bono services would mean a person who would walk into a lawyer's office and literally beg for some help that they couldn't afford. And lawyers, at least in this province, always responded. But it was disorganized, so lawyers who wanted to do pro bono work didn't necessarily get it and people who needed pro bono work weren't necessarily matched with lawyers to do it."

With the help of PBLO, law firms interested in doing pro bono legal work now can be matched up with a "turnkey program" to help those who need their services, says Mr. Manes, who says the matching service is particularly needed to find pro bono opportunities for lawyers who practise in areas other than litigation. "That is unique in North America."

At a conference sponsored by the PBLO last May, Chief Justice McMurtry appears to have tickled the notoriously competitive spirit of Toronto firms by publicly congratulating those few firms that were leading the charge to implement the new policies. He and other highly respected legal figures have also been using their moral suasion on the managing partners of the big firms during luncheons and other meetings, say lawyers.

"There was a lot of recruiting of large law firms by Pro Bono Law Ontario to get them involved, including direct contact with the Chief Justice, who took a very active part in that recruitment," Mr. Manes says.

As a result, many more law firms have begun stepping up to the plate to become part of the new initiative. Ms. Burns says firms currently developing more formalized pro bono policies and programs in partnership with PBLO are Stikeman Elliott LLP, Lerners LLP, Heenan Blaikie, Fasken Martineau, Torkin Manes and WeirFoulds LLP.

The development is no mean feat for law firms in which top producers can charge more than $500 a hour for their work.

"In every firm there's going to be a beancounter on the management committee. It's probably taken each of these firms a couple of years to convince the beancounters that it was not going to hurt the bottom line of the firm," Ms. Burns says. "They really had to take a leap of faith to say: 'Let's try this.' "

PBLO is currently facilitating 33 projects in which lawyers are providing free legal services to the clients of such groups as Justice for Children and Youth, Evergreen, Aboriginal Legal Services, a residents association in the Regent Park neighbourhood of Toronto, the South Asian Legal Clinic of Ontario, the Canadian Artists Federation and Beyond Borders.

While many lawyers believe they have a responsibility to provide free legal services to those in the community who might not otherwise be able to afford them, they also concede that doing such work fosters the sorts of community relationships that can help to develop paying clients down the road.

Establishing a firm's commitment to pro bono work is also an important factor in recruiting and retaining the best lawyers, especially the younger ones, who may want to continue the pro bono work they found so personally rewarding in law school.

"People like to think their opportunities to help in the community are not confined to their outside-of-work activities -- that they can put the two together and they can, through their work, effect change in their community," says Darren Sukonick, a member of the pro bono committee in Torys' Toronto office. "When we recruit people, they want to know that this type of involvement is going to be part of their professional life going forward and that the firm is supportive and provides opportunity to do it."

Pro bono work also provides important training opportunities for young lawyers, allowing them a chance for courtroom advocacy experience or to work directly with clients, opportunities they might not have as a junior member of a large team working on a corporate file. "It's also a good way to build a sense of team spirit and community within the firm," says Anne Ristic, assistant managing partner of the Toronto office of Stikeman Elliott LLP.

As well, law firms are keenly aware of the need to ensure such legal work -- even if it is provided free of charge -- is first submitted to a proper conflicts check and is properly supervised by a senior lawyer so the firm is not exposed to conflict issues or liability for errors and omissions by lawyers who might agree to do freelance pro bono work of a nature with which they are not fully experienced.

"Lawyers, of course, have been doing this kind of work forever, whenever they've felt the need. What they used to do is just not keep track of their time or they did it on the sly and a file never got properly opened," says Peter Lockie, of Ogilvy Renault. "I don't think that [a concern about liability] is a driver of this, but that would be an issue. The firm would be liable for errors and omissions. It would be embarrassing if we had conflicts that we didn't deal with properly. What we're saying is that pro bono clients are entitled to all the full range of services we offer, all the confidentiality, the same quality of service, and so it needs to be run like a proper file."

Even with the new policies in place, lawyers with several firms say they are still waiting for some lawyers to officially open files for pro bono legal work they had begun previously.

Still, they say they haven't experienced problems with pro bono matters, nor have they found the new policies that encourage such work have had any negative impact on their bottom line.

"In 15 years of supervising the program, I have not seen a problem with lawyers doing pro bono work to the detriment of their chargeable work," says Osler's Brian Morgan, who says lawyers at his firm have contributed 2,500 pro bono hours a year for each of the past several years. "We could always do more."