Roger writing the LAWmag
23
Apr 2008

Pro Bono Hypocrisy

The Hon. B. McLachlinIn consecutive issues of Canada's lawyer rag, the Lawyers Weekly of April 11 and 18, 2008, two stories appear.

The first is Lady Justice herself, The honourable Beverly McLachlin (pictured) who lets loose with her annual behavioural speech to lawyers.

This year's theme is a re-hash of a refrain she's been singing for awhile; but a worthwhile and good refrain.

"Profit Pursuit Imperiling Professionalism" reads the headline, reporting on the speech she gave at a University of Ottawa conference held in March of 2008.

The gist of it is that lawyers are charging too much money and depriving the middle class of legal services.

She reportedly said:

"We can't take the business out of law but we have to put professionalism back in the driver's seat.

"Pressure to earn can push fees higher and it can also affect access to justice."

Excuse me?

"Can" push fees higher?!

As in rain can wet the grass?

Cows can produce milk?

In water, fish can swim?

In the same newspaper a week previous, is a full-page feature of a Toronto law firm that is being celebrated for pro bono work, championed as synonymous with social justice.

This type of hypocrisy may be a tort as it can cause serious physical injury, tearing the body apart: one side writhing in hysterical laughter while the other side fights tears.

The truth is that (1) for any lawyer to afford to do pro bono work, he or she has to overbill someone else for their time or (2) the pro bono is a marketing loss leader.

There are real heroes out there, doing pro bono on just about every second phone call.

But they are rare.

The real pro bono heroes go unheralded, the ones who drive an old Westfalia and whose kids go to public school. They are not the ones getting the law society public service awards. That would be the senior partner at some large urban law firm, with time available because of his monthly partner cheque the associates are feeding.

If the lawyer has time they can afford to donate, it is because they charged to much to someone else and can cover for the pro bono hours with the surplus.

Still others see pro bono as a marketing tool. Pro bono means "for the public good" but most lawyer do it because it is also for that lawyer's "good"; marketing "good"; damn good!

Pro bono commitments are made for high profile cases in which, from a law firm prospective is a loss-leader they can't lose. Even if they lose the case, they are still seen as nice guys by the press and their law society colleagues always quick to reward pro bono work.

McLaughlin starts to sound like nails on a chalkboard.

But she is right and wrong.

There's no point holding our breath waiting for lawyers to right the wrong on this.

But she's right in that lawyer fees is the problem.

Lawyers - in a perfect world - would recognize their privileged position in the world of commerce and would set their rates not to the highest they can achieve but to a reasonable rate.

I once hired a lawyer for an hour consultation on an employment problem I was having. It cost me $500 plus taxes. And that was 15 years ago.

Lawyers will never, ever set rates reasonably. They will always set rates to the highest the market can bear. Why go to the local zoo if you can go to Tahiti? Why drive a Volkswagen if you can drive a Mercedes? Why send the kids to public school when you can send them to private school?

There will always be exceptions and God bless them but as a group, lawyers cannot and will not set affordable rates.

Sorry Beverly. Nice intentions and all but don't hold your breath.

Pro bono enthusiasts are hard to criticize. There's no shortage of well-intentioned non-profits begging for a bit of free legal help. And the well-to-do urban lawyers rolling up their sleeves for a few hours every week actually are donating their time.

But for every hour given to a pro bono client, that very same lawyer has had to of billed another paying client so much that he/she can afford to "donate" this time. It's simple math.

The solution as to lawyer fees is elusive. The most talked-about model, a rigid grid based on years of experience would be impersonal and rob the bright young lawyer from higher rates.

But while that model - indeed, any model, remains intentionally buried in the vaults of Canadian law societies for fear - horrors! - that it be outed, lawyer rates remain high. Chief justice will continue to squawk and the law societies, chaired and run by lawyers, to champion the artificial and self-serving panacea of pro bono.

While I fight to keep my supper down.

REFERENCES:

  • Schmitz, C., "Profit pursuit imperiling professionalism", The Lawyers Weekly, April 18, 2008, p. 1.
  • Singer, B., "How law firms devoted to pro bono & doing good get by", The Lawyers Weekly, April 11, 2008, p. 20.

 

 

 

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