OPINION: Lawyers shouldn’t have to provide mandatory pro bono legal services

0
294

Shutterstock

Access to justice has been a significant issue facing government. As court resources become more scarce, and many people seeking legal assistance cannot afford legal fees, citizens have turned to the government for assistance.

One of the proposals to deal with the access to justice crisis in this province has been to compel lawyers to complete pro bono work.

While the intention behind this suggestion is certainly well-meaning, we all know where good intentions lead.

One of the models proposed for the provision of pro bono legal services has been by way of assignment from Legal Services Society, or Legal Aid. Legal Aid funds individuals who are in need of legal services in relation to family, immigration, criminal, and child protection.

As a criminal lawyer, I do not know the first thing about child protection or immigration or family. And the same is true for lawyers in other areas of the law. Not many lawyers are generalists, with experience in all areas. And those who are run the risk of being ineffective. Not every lawyer can learn all aspects of the law. Lawyers focus on an area, or a few areas, and develop an expertise in that.

And while it would be relatively easy for me to provide pro bono criminal law services (on top of the pro bono work that I already provide every year), that does not apply to all lawyers. There are many lawyers who do not work in and have little or no knowledge of, any of the areas of service offered by Legal Aid.

For example, some lawyers focus on real estate transactions, or corporate commercial law, or administrative law, or strata disputes, or human rights, or residential tenancy… the list is endless. Some lawyers go their entire careers without ever stepping foot into a courtroom.

There is nothing wrong with this. Lawyers are needed for all areas of the law. Not everyone has to live out their career like something from a courtroom drama on television.

What training will be provided to a corporate lawyer, with no criminal law experience, to ensure that he or she can adequately represent a client charged with theft? Or drug trafficking? And how will Legal Aid determine who gets what types of cases? Will it depend on the type of charges the person is facing?

A person is not just entitled to legal representation. They are entitled to competent representation. And that applies whether they are facing a first charge for shoplifting or a seventeenth break and enter charge.

It is simply wrong to throw an inexperienced lawyer into an area of law about which they have no knowledge. Cross-examination of witnesses is a skill that is learned over time. Nuances in evidence that pertain to various cases in an area cannot be learned overnight. Litigators spend years developing these skills.

A good example of this is borne out in the case of Joe Groia. This case is famous because of the disciplinary sanctions brought against Mr. Groia – which were successfully appealed to the Supreme Court of Canada – in relation to his conduct in a criminal proceeding. He made several applications to the court regarding the conduct of Crown, alleging bad faith and a host of other ethical blunders.

None of his allegations were legally correct. But he spent court time and his client’s money making the allegations.

And while the Supreme Court of Canada ultimately determined that you have a right to be wrong, Mr. Groia being wrong did not do his client any favours. Mr. Groia was wrong largely because he did not understand the rules of criminal evidence or procedure; he was a famous securities lawyer, not a criminal lawyer.

Imagine a case where the lawyer is wrong in a way that compromises an accused’s right to a fair trial? Where a lawyer fails to understand the obligation to put their client’s version of events to each witness, or where a lawyer fails to call their client to testify on a pre-trial application due to a lack of understanding about how that evidence would be admissible? Imagine a case where a necessary pre-trial application was not made and otherwise inadmissible evidence was suddenly admitted.

Imagine a case where the evidence in a serious criminal trial was not properly tested.

The reality is that those cases will exist if pro bono work is required by assignment. The reality is that people who are not guilty will be encouraged to plead guilty, on the basis of an improper assessment of the strength of the Crown case. Children will be kept in custody of the state due to an improper understanding of case law in child welfare cases. Immigration applications will be denied. Refugees, sent home. Deportations allowed.

The consequences of this are potentially devastating. And if this happens in even one case, it is damaging to the reputation of the justice system.

There is no shortage of lawyers willing to do legal aid work. There is no shortage of lawyers wanting to take on legal aid files, notwithstanding the insulting tariff rate. The problem is not one of not having enough lawyers ready and willing to work in these areas of law. The problem is one of funding.

Currently, insofar as criminal cases are concerned, Legal Aid will not provide coverage for anyone who is not facing jail time. Legal Aid will also not provide coverage for people who do not meet a certain income criteria. There are more people seeking Legal Aid than Legal Aid is willing to pay for.

But adding more lawyers will not solve that problem. Adding more lawyers who have to complete a minimum number of hours does not suddenly mean that Legal Aid is properly funded.

The only way to ensure that Legal Aid is properly funded is to fund it.

It used to be that the PST collected on legal services in British Columbia was allocated to fund Legal Aid. But that stopped several years ago, and PST from legal services was diverted into general revenue. What would happen if Legal Aid suddenly received this boost in funding? The government is collecting the revenue, as it is, from legal services that are being paid for in this province. There is a source by which Legal Aid can be properly funded.

Suggesting that lawyers should step up and fill a funding gap that the government refuses to fill is, frankly, pretty rich. Especially considering the fact that the tariff rates are so low that most lawyers who do full-time Legal Aid work earn less than minimum wage. But rather than pay lawyers a fair wage for the work they are doing, the government and uninformed individuals seem to think that the solution is to ask lawyers to work for free.

Refusing to properly fund Legal Aid is one thing. But pointing the finger at lawyers by claiming that they do not do enough pro bono work is both dangerous and insulting.