As a second year law student at McGill University, the role of the CBA as one of civil society’s most important contributors to the discussions about pro bono services was brought to my attention by my Legal Ethics class curriculum. My own reading of the CBA’s ongoing efforts in this regard further sharpened my understanding of the issues involved (see, for example, the CBA’s Proposed National Benchmarks for Public Legal Assistance Services and the work of its Pro Bono Committee). Thus, while I’m far from being an expert on this topic, my head is already swirling with the thorny debate surrounding the roles, duties, and obligations of legal professionals.
The CBA is one of a series of organizations and instruments that promote the very noble and necessary understanding that jurists are both well-placed to prevent, and uniquely responsible for, the misuse of our legal system. Hand in hand with this view is the idea that jurists ought to act in the best interests of society, and this is where the role of pro bono legal services comes in – particularly as a tool to address the crisis of access to justice in Canadian society. There is little that I can disagree with in these arguments. Indeed, they would seem to represent the hope that most people have for the legal profession and the esteem in which they would like to hold lawyers in.
However, I cannot help but wonder if, given the penultimate reason why the legal profession exists and the nature of Western juridical systems, we can ever reasonably hope for the legal profession to reflect the platonic ideal described above. I raise this criticism not with the aim of toppling the theoretical basis on which pro bono work is being promoted, but rather to highlight what strikes me as a fundamental divide between what we wish of the legal profession, and what the legal profession is bound to do by the rules of the system in which it operates.
In an ideal world the law would be sufficiently simple, and each citizen sufficient capable in its application, that there would be no need for lawyers. But this is not the case for a vast number of reasons, and so lawyers ply their trade in one form or another in almost every society. Consequently, then, it is the first and most basic duty of lawyers to simply carry out the wishes of their clients, with whom the lawyer has, it ought to be remembered, made a covenant. The goal of promoting the best interests of society is not strictly at odds with this role, but they are separated by a gap nonetheless. Worse still, there is rarely an incentive other than the avoidance of sanctions to bridge that divide.
This is probably what fuels the many unflattering jokes and stereotypes about lawyers, and it seems largely as a response to these concerns that initiatives to change the legal profession, including current discussions about pro bono work, are undertaken. And yet, are such solutions enough to fix the problem? There is a deeper issue in my estimation, and it is one that legitimately deserves the characterization of “systemic” that has become somewhat of a catchphrase in academic circles.
Consider that a lawyer involved in a paying relationship with a client is faced with the competing (but not irresolvable) priorities of representing their clients’ wishes and of adhering to a professional code of conduct. However, a lawyer working in a pro bono capacity should not – at least in theory – be subject to this tension. In pro bono work, the goal of acting as the clients’ legal vicar (and I use that term in its least ecclesiastical sense) becomes much less pronounced, if not absent. This seems to be a necessary consequence of the simple fact that pro bono “clients” are not clients per se, leaving lawyers free to prioritize other goals such as the broader promotion of social well-being.
At first blush, this would seem like an idyllic solution to a number of problems; indeed, remove any real incentive for lawyers to do not what they believe is most just, but what the client wants, and many of the evils of the legal system are correspondingly undermined. It might even advocate for a system where legal services are provided for entirely by the State (so long as the State remains a neutral arbiter in all situations and is never party to a legal dispute). But my suspicion is that a lasting solution would not be so simple. First and foremost, the absence of any mutuality of obligation – in particular, financial ties – might leave the lawyer free to act in the best interests of society, but it also attacks the faithfulness with which the client is represented. This is problematic, because it removes from clients who do not have the legal expertise to represent themselves the freedom to choose the form that such representation will take. Secondly, if the nature of the lawyer-client relationship were so construed, it would be completely at odds with the adversarial legal system that we have in place. Ultimately, our legal system is posited on adversity – the clash of two opposed sides, each with their own interests and versions of the truth, pushing their agendas as far as they possibly can. For better or worse, we have collectively and historically decided that somewhere in the midst of this conflict lies the closest approximation of justice that humanity can realistically attain.
If such is the logic of our legal justice system, is it reasonable to promote an identity of jurists as quasi civil servants acting primarily out of a duty of public service? In an adversarial system that is predicated on the clash of parties, the duty of every lawyer becomes putting forth the strongest arguments possible – since, in all rational expectation, their counterpart across the courtroom is doing the same. Where one of the legal professionals involved fails to do so, the system becomes unbalanced and guarantees little if not that a just result is all but forsaken. Indeed, given the gravity of this responsibility and the high consequences of failure in court, it might even be fair to characterize the faithful (if not forceful) representation of a clients’ wishes as a particular brand of public service in and of itself.
All this being said, there is little doubt that our system needs an overhaul, or at the very least, some major patchwork. For while the adversarial justice system gives parties the freedom to choose the form and force of their legal arguments, we also know that it frequently results in injustice of all kinds. It is also undeniable that the proposals for mandatory pro bono work would go a long way towards rectifying many of the problems affecting our legal system. And still I feel that a true cure would require more significant and sweeping changes than what is presently being suggested. If nothing else, we ought to be mindful that any reforms are sure to carry with them their own hazards and complications – for example, the sacrifice that must surely be made if the ability of the individual to put forward any issue of their choosing, and to elect for such resolution as they believe justice demands, is lost.