ࡱ> ikh QbjbjT~T~ \66HI'''''$KKKPK(KKK      $Z*-'KKKKK-''XBK''K@4:ԅaK/X0& #& & '<KKKKKKK--KKKKKKK& KKKKKKKKK : Pro Bono: What Else Can We Do? The Honourable Marie Deschamps Justice of the Supreme Court of Canada 3rd National Pro Bono Conference Calgary, Alberta September 17th, 2010 When Guy Pratte asked me to join you today, it was with enthusiasm that I accepted. In fact, if you want to have a measure of the importance our Court attaches to pro bono, you may be interested to learn that both Justice Rothstein and I, unknown to one another had both agreed to participate in your conference. Not many themes are important enough to attract not only two Supreme Court justices, but 225 participants in September, at the beginning of the judicial year. But I would say that September is the best time for this kind of gathering. This is the time to look at our agenda and make sure the proper balance is found. Many people kid me about work-life balance. They usually refer to the importance I put on physical activity. However, community involvement is at least as high on my agenda and, in my view, it is actually the highest form of work-life balance. In my presentation today, I would like to reflect with you on what can be done to improve access to justice, both in the short term and in the long run. But before I do that, I think it is useful to look back over our shoulders. You may have heard about this report published in the 90s in England where they found that there were serious problems with the practice of law. There were too many lawyers, they lacked ethics and there was a lack in training. The authors of the report made a number of recommendations to deal with the problems. You may think that we have the same kind of problems. The number of lawyers is not what detains me. Rather it is ethics and education. They are too much too familiar concerns. But the reason I talk about this report is not because many countries may seem to have the same problems. I told you the English report was published in the 90s. The reality is that it is not from the 1990s. In fact, the report was published in 1292 in the Rotuli parlementarium, more than 700 years ago. This tells us that access to justice is a perennial work in progress. David Scott talking about the obligation for a lawyer to perform pro bono work and traced the obligation to the Law Society(s regulations. I also reflected on the foundations of this obligation. The first thing I looked for was the meaning of the word (profession(. We all started our legal career by adhering to a profession. Etymologically, professing something is to declare something publicly. The word became associated with professing to be able to provide special services to the public. In all professions, the public component is dominant. For lawyers, it is incarnated in the pro bono services they provide. This concept is not new. It dates from the Middle Ages: in fact King Henry VII enacted a law which remained in effect until 1883. It said: (... justices shall appoint an attorney ... for the ... poor person ... (and attorneys shall) do their duties without any rewards(. So the concept of pro bono is, in my view, grounded in the obligation lawyers have to live up to the profession they make to serve the public. But lawyers sometimes have to be pushed a little bit to ensure that the obligation is performed and this is why law societies have to make the obligation clear. I will come back to this later. Initially, the notion of pro bono work meant that lawyers were willing to provide legal assistance to people who had to interact with the court system. A lot has been done to improve access to the court system. Legal clinics have been put in place. Lawyers try to provide services for those who do not fit the legal aid requirements. Rules of procedure have been changed. Delays have been cut. New mechanisms have been put in place to resolve disputes without having to go to trial. In the end, none of these changes bear the seeds of the magic recipe to access to justice. To be convinced, we can have a look at how it translates in practice. We just have to read the headline in the Globe and Mail this morning about family law in Ontario. We have also heard of horrendous numbers. Chief Justice Wittmann says that in the motions courts in Alberta in 2009, there were 5600 unrepresented claimants. I do not have the number that could allow an easy comparison, but in Quebec, Chief Justice Roland says that for family law, in the motions court in 2009, 41% of the litigants were self-represented. That surely demonstrates that despite all the procedural changes, the situation has not improved significantly. So it is time to look elsewhere than to the rules of procedure to improve access to justice. Besides the procedural changes that have been made, there is one achievement that does not get enough attention. It is the use of the Internet. I believe the greatest achievement of our court system is to have opened itself up to the electronic age. All courts in Canada now use the Internet in one way or another. This is a fundamental change in the access to justice. Not only can the general public have access to judgments, but in the case of the Supreme Court files, everyone can , with a few clicks, watch the Court(s hearings or see for himself or herself the basis of the Court(s statements. The evidence is available to the public, the arguments raised by the parties in their factum can be read and, obviously, the judgments are available at no cost. In some provinces, governments have devoted budgets that have allowed increased access to justice through the Internet. A very good example is the web site of the Nova Scotia courts (http://www.courts.ns.ca/). They make available everything from a kit for self-represented litigants to the dockets of the courts and of course the judgments. The Internet opens up avenues that were not in existence just a few years ago. I will come back to the Internet later in my presentation because I think this is one of the ways that access to justice can be further developed. For now, I want to point out to other avenues that can be explored. I do not want to be understood as saying that we should abandon the pro bono court work, but we have to take a broader approach. We, lawyers - and I very much think judges remain lawyers in the broad sense all their lives - we lawyers are trained to think in terms of court work or at least dispute resolution. Litigation lawyers historically have earned their living through dispute resolution. But room needs to be made for new ways of looking at access to justice. The judicial environment is only the tip of the iceberg. Lawyers should be in a position to make their intervention at an earlier stage. In his book The End of Lawyers?, Richard Susskind calls this (dispute avoidance(. So much more can be done to achieve wider justice if disputes can simply be avoided. Yesterday, I participated in a workshop where the panelists described new initiatives that allow providing services differently. I have my own examples - they all focus on early intervention. (The Timeraisers( is the first initiative I thought of when I started to think about what lawyers could do to have input in the community at a moment where the crisis has not yet broken out. This project was started in Toronto in 2002 by a group of friends asking themselves how they could find meaningful relevant volunteer opportunities. The way it works is the Timeraisers first find people willing to donate art. Second, they find groups in need of help. Third they advertize the event. Then participants willing to do volunteer work offer a number of hours, say 20 hours, as a bid for artwork that was donated to the organization. But there is an auction. Another participant can offer 30 hours to get the artwork. One of the challenges of the Timeraisers is to make sure that the volunteers are well-matched with the groups in need of help. This kind of initiative is open to lawyers and shows that they do not need to be limited to providing services in the court context. The groups in need of help can seek advice before taking action and can prevent future disputes. There are so many groups that would improve their decisions and the services they offer if they had early access to legal services. Pro bono work can cover a wide range of interests and needs. For those interested to know more about the project, there is a Timeraisers event in Edmonton on October 16th (http://www.timeraiser.ca/en/2ndEdmonton). I can easily picture lawyers organizing this kind of event focused specifically on legal education. It seems that educating people in need is the best way to have an input early enough to avoid a dispute. Talking about legal education, you may have heard of the project called (Inns of Court(. This one is focused on legal training going beyond learning black letter law or even strict advocacy. Those of you from British Columbia are no doubt aware of this project. The first project was launched in the United States. It was inspired by the British Inns of Court where senior barristers train the incoming ones. I say inspired because what was kept from the initial model is the input from the senior jurists. The meetings can include speakers from various backgrounds. The British Columbia Inns of Court were founded in 1984 by Alan McEachern. The focus is mainly on professionalism and civility. Young lawyers register for sessions and then meet every second week. I see this program as having enormous potential. It can be developed to benefit from retired judges, just as they do in the UK, or retired law professors. It can include not only young lawyers, but also law students or even members of the community interested in the law. I could continue and give many more examples of ideas that can be developed to attract a wider variety of lawyers to give their time and make their talents available to the communities in need of legal services. But how can this be achieved, how can the culture be changed to one where the ethics underlying pro bono prevail over a more limited view of the practice of law. My suggestion, as shown by the examples I gave, is to increase participation involving a broader range of services. Let(s get out of traditional legal services. If lawyers can identify organizations where they can share their talents and have fun at the same time they are more likely to develop a different culture. I nonetheless think lawyers need some incentive. In the workshop I participated in yesterday, it seemed to be the same old tune. There are not enough lawyers volunteering their time. Despite the fact that the regulations of the Law Societies may provide a basis for an obligation to do pro bono work, it does not seem that everyone thinks they have to. And I know it is always difficult to pull a lawyer from the intensity of his or her day-to-day practice when he or she is already struggling to balance work with personal life. It seems to me that if we want all lawyers to share in the effort and if we want to increase the offer of services, there is not much choice. I have heard our colleague from Chicago saying that there is reluctance. However, I firmly believe that something in the short term has to be done to underscore the importance of sharing our talents. Not only should pro bono have a broader and earlier impact, but contributing a certain number of hours should be part of the practice of law. This was done for continuing legal education. I do not see why it could not be done for pro bono work. Think of your children who now are generally bound to complete a number of hours of community work to obtain their high school or law degree. Why not the adults too? The barriers to pro bono work have to be overcome through some incentives. Why is it that most law firms now account for the participation in legal training and in some social activities and not in pro bono. Pro bono work is at least as important as legal training. We have heard that Blakes does it, and that it is even a marketing tool. The Law Societies should join in. Legal education and involvement in the community should be seen as integral to the practice of law in the form of a mandatory requirement. It should be a formal part of the public component of the declaration one makes when he or she professes to be a lawyer. I understand that the Australian Senate published a report last December where it recommends that governments and legal professional associations promote participation in formal pro bono schemes and mandate a pro bono legal work requirement. I also learned that in New Zealand, the Attorney General and the Minister of Justice are currently pondering the idea of making pro bono mandatory. And, in China, when lawyers do not provide pro bono representation to the poor, they risk losing their right to practice law. So not only is it feasible, but I think it is a growing trend. To summarize some of the ideas that would be the most beneficial in Canada regarding areas of pro bono work, I suggest, first, to consider pro bono as a condition of practice and, second, to include a certain amount of noncourt oriented community service work. Those are my two first suggestions, but there is a third one where I pick on ideas discussed earlier. Nelson Mandela said, (Education is the most powerful weapon which you can use to change the world(. As my anecdote on the English report shows, the world cannot be changed easily but it does not mean nothing can be done. For sure, if students learn early on to share their gifts, if highschool students know more about the law and succeed in avoiding disputes, a lot will have been accomplished. I am confident that more education about law and preventive legal intervention made by pro bono lawyers would not only be beneficial to the population in general, so they can solve problems without a trial, but also to lawyers because of the change in people(s perception of them. So the third prong of my message is : focus on the youth through education and use their own tools. I suggest we should focus the bulk of our efforts on the next generation. So let(s look at our youth. I hear you saying : educating the youth is easier said than done and it is not our expertise. Again in a workshop yesterday, I heard about a very impressive initiative called CLERC, standing for Children(s Legal & Educational Resource Center. I have another example of an initiative which focuses on youth. While CLERC attempts to answer the need of young people having a specific problem, the initiative I want to talk about focuses on prevention through education. I am talking about Educaloi (http://www.educaloi.qc.ca/en/). It is one of the best examples of a productive educative initiative. As its name indicates, it is all about education and the law. This organization was created 10 years ago with the support of the Quebec Bar. It is now sponsored by several corporations, but mostly, it attracts high profile members of the Quebec community. Former Chief Justice Pierre Michaud was Chairman of their Board for many years. He has been replaced by former Justice Minister Martin Cauchon. Their board counts on media people and a broad range of talents. It has become a hub in legal education. In October it is holding a conference on (plain language( featuring speakers and guests from across Canada and Europe. But the main reason I draw your attention to Educaloi is because it has made the youth one of its main targets. It values education at a stage that makes it likely that the person will have good habits for the rest of his or her life. Educaloi has put in place very interesting tools. For example, it runs summer camps for 12-14 year old students. It is called Aventure en cour. I was invited to participate in one of their camps. The experience was fascinating. At the end of one week, the kids had learned about the justice system. They had prepared for a trial, including finding arguments based on the Charter. On the last day they pleaded before a judge. But this is only one of its tools. Its most important one remains the Internet. And this is the connection I wanted to make with the Internet. Without it, Educaloi could not reach the clientele it has specifically targeted. For example, it uses - I should say obviously - Facebook and Twitter. Educaloi uses games and comics to pass its messages along. It has a teachers( corner and many other eye-catching features. As you see this is very far from the traditional community clinic I worked for when I was a student or the legal aid firm where I was hired as a lawyer. If we want to reach our teenagers, we have to use the media that they themselves use, be it the Skypes of Facebooks of their world. Standard newsletters or word-of-mouth is no longer sufficient. So these are the messages I wanted to pass on : we have to do something in the short term - this means finding ways to make pro bono an integral part of being a lawyer by imposing minimum standards and by opening up new forms of pro bono work. But if long term improvements are to be achieved, we have to focus on legal education, more particularly legal education of youth. Thus, I urge the participants to come up with new ideas and solutions which will prompt changes regarding pro bono work. There is room for change. The betterment of our community is in your hands. S'engager dans du travail pro bono ne veut pas seulement dire que nous fournissons gratuitement des services que nous aurions autrement pu facturer. Je fais un parallle avec l'exercice physique. Il nous permet de profiter de la vie pendant que nous le pratiquons. Il nous donne de l'nergie pour pouvoir tre plus productif et ainsi profiter plus pleinement de la vie audel des minutes qu(on lui consacre. L(implication dans le travail pro bono nous permet de faire le pont entre deux mondes: celui de Dik, fille de Thmis et de Zeus, desse grecque de la justice fonde sur les valeurs morales et celui de Thmis, desse grcoromaine de la justice lgale et du droit. L'implication communautaire satisfait ces valeurs, cette fonction de service public mais nous apporte aussi du plaisir lorsque nous fournissons ces services. Ce plaisir, comme l(exercice physique, va bien audel des minutes qui y sont consacres. Trouver de nouvelles avenues et implanter les rformes ne peut que contribuer l'accs la justice. Nous devons cibler l'ducation juridique et l'intervention prventive pour assurer un meilleur quilibre social. Merci de votre attention.      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