ABSTRACT
The relationship between work that lawyers call by the shorthand tag ‘pro bono publico’ and the public interest is at once simple and complex. It is simple in the sense that lawyers are key guardians of the rule of law, which in a democracy is a cornerstone of the public interest. There is a clear public-interest benefit for lawyers to ensure access to the rule of law, especially on the part of the vulnerable. It is complex because lawyers seek not only to ensure access to the rule of law but also, in many cases, to serve clients, run a business and seek to profit from the provision of legal services. For example, one of the few reasons for which it is ethically permissible to turn away a potential client is if they cannot pay their legal fees.2 Thus lawyers at once uphold the public interest and pursue their own interests (often through advancing the interests of their clients). These objectives, of course, will not always be in alignment. In this chapter, I suggest that the current approach to the public interest dimension
of pro bono is not coherent. The current approach views pro bono as a public good notwithstanding who is providing the service or why, and notwithstanding who is receiving the service or for what problem. In my view, pro bono should be viewed from two distinct perspectives – that of the lawyer and that of the client. If viewed from the perspective of the lawyer, the important question to ask is why the lawyer is engaging in pro bono. Some lawyers will seek out pro bono opportunities because they see this work as a public duty. Other lawyers, however, may work for partial or no compensation for any number of self-interested reasons – for example, to assist in enhancing their reputation or marketing their services, or as a loss leader for an important client, to impress someone more senior or for other idiosyncratic motives. If the point of pro bono is to reflect the best public service traditions of the legal profession, some of these reasons for acting seem antithetical to this goal. If, however, the interests of the client are considered paramount, then meeting the client’s needs is the point of pro bono, irrespective of the lawyer’s reasons for providing the service. But will a well-served litigant necessarily be concerned why their lawyer takes on a case pro bono? Conversely, should a pro bono lawyer care about their client’s real reasons for
seeking legal services? A client’s subjective needs will not always advance the
public interest. While pro bono services to prevent an eviction or deportation may be easily justified on public-interest grounds, obtaining free legal advice to launch dubious litigation against a neighbour or to escape a debt can pose challenges to the public-interest rationale for pro bono. The current approach to pro bono lacks coherence because we embrace the
lawyer and client perspectives but seem unable to provide a satisfying account of how existing pro bono policies and programmes advance the public interest under either. While this analysis will focus on the situation of pro bono in Canada, and particularly in Ontario, I believe the issues addressed are of broader application, particularly to common law jurisdictions where access to justice in civil litigation settings is regulated foremost by the monopoly position of lawyers in the market. That said, while a public interest perspective on pro bono is relatively novel in Canada, it is a well-established paradigm in other common law jurisdictions, particularly Australia.3
