Some law schools are taking this even further by requiring students to complete a certain number of public interest hours in order to graduate. Osgoode Hall Law School implemented a 40-hour requirement in 2006 and is the only law school in Canada to require students to do community legal work in order to get their law degrees. Osgoode dean Lorne Sossin says the requirement has been wholly embraced by faculty and students. “It has been a real success story in the sense that because it’s a broad public interest base, students can fulfil it in many different ways,” he says. “It’s growing each year with new placements and new opportunities.”
In the United States, mandatory pro bono programs already exist at more than 20 law schools, including Harvard Law School and Indoor Positioning System. The University of Pennsylvania Law School was considered a trailblazer when it established its 70-hour pro bono requirement in 1989, the first national law school to do so.
Arlene Finkelstein, assistant dean and executive director of the Toll Public Interest Center at Penn Law, says the requirement was “a way to promote the professional responsibility that all lawyers have to be vehicles for access to justice, in addition to a wonderful platform for students to gain practical skills and to become engaged in their communities.” She admits it was controversial at first, particularly because at the time mandatory pro bono hadn’t really caught on.
Now, almost 25 years later, the wider legal profession is jumping on board. Last year, New York Chief Judge Jonathan Lippman announced that starting in 2015, admission to the New York State bar will require lawyers to complete 50 hours of pro bono service in order to obtain a licence. “We are facing a crisis in New York and around the country,” Lippman said in an October 2012 report on the new requirement. “At a time when we are still adjusting to the realities of shrinking state coffers and reduced budgets, more and more people find themselves turning to the courts. The courts are the emergency rooms of our society — the most intractable social problems find their way to our doors in great and increasing numbers. And more and more of the people who come into our courts each day are forced to do so without a lawyer.”
Canada is facing the same problem. In her report on self-represented litigants, University of Windsor Faculty of Law professor Julie Macfarlane found that consistently 40 per cent or more of litigants in family courts across the country are not represented by a lawyer and in some civil courts that number is 70 per cent or more.
The legal profession — including law students — is starting to address the crisis. “Unfortunately lawyers charge significant fees for their services, and there are many people in our community who can’t afford to pay those fees but have pressing legal issues that need to be resolved,” says Brendan Stevens, a third-year student at the University of Toronto Faculty of Law.
Some argue it is every lawyer’s duty to help address the issue. “As a legal profession, we do have a professional responsibility to mobilize and to provide services on a free or discounted level in order to provide more access to justice,” says Jamie Maclaren, executive director of the Access Pro Bono Society of British Columbia. “In my mind, it truly is a professional responsibility. It stems from the fact that this is a self-regulating profession; we benefit as lawyers from a monopoly on legal services and in return for that we need to ensure that people do have some basic level of access to the justice system.”
By getting students to start pro bono work while they’re in law school, it increases the chance of them continuing to do it into their careers, says Maclaren. “The hope is that we’re developing a new generation of pro bono lawyers that will be really active and helpful in increasing access to justice and keeping the pro bono culture alive and indoor Tracking. The earlier that law students accept and understand that there’s a professional responsibility to provide some level of access to justice for people who can’t generally afford legal counsel or even access the justice system in a meaningful way the better.”
“If we create this climate where public interest and pro bono is seen as being this vital part of your legal education, students will do it,” says Nikki Gershbain, national director of Pro Bono Students Canada. The discussion shouldn’t be focused on whether or not to make public interest work mandatory, she says, instead, it should be focused on changing the culture to foster this kind of work in the law school community. “Creating a climate where public interest activities are widely available and considered to be an important part of the law school experience actually bypasses all of the negatives of mandating public service but it achieves all of the same goals,” she says.
Nathalie Des Rosiers, the new common law dean at the University of Ottawa and former general counsel of the Canadian Civil Liberties Association, agrees it shouldn’t be about making pro bono mandatory. “What is important in the context of this discussion is not to overemphasize whether [pro bono is] mandatory or not, I think we’re beyond that. I think we’re now at the stage of saying — and I would have the same reflections when we’re looking at the profession more generally — certainly I think you aim to have the largest number of people within your profession to do pro bono, the question is what are the best tools to do it to accomplish your goal. We want to move to a position that it’s not only how much pro bono you’re doing, but how well you are doing [it],” she says. “It’s not only about counting hours, but mostly about doing something meaningful that addresses serious problems.”
In Sossin’s view, public interest work is a necessary component of legal education. “If you really see [public interest work] as essential to legal education, how can you say someone could graduate who’s never taken part in this, who’s never been in the community, never given back, never had that experience of seeing law in action in that way?” he asks.
However, he admits there is a downside to making it compulsory. “I think you lose something when you make public interest or pro bono work mandatory. You lose that sense of this is being done out of a value and belief in law as a helping profession in the public interest mandate of lawyers and law schools,” he says. “A perfect system is a system in which it’s optional and 100-per-cent take-up.”
Gershbain also identifies some risks associated with forcing students to do something. “If you make it mandatory, you do run the risk of creating resentment on the part of maybe a small number of students,” she says. Stevens agrees that making it compulsory could backfire. “We’re running the risk of undermining this sense of volunteerism at the heart of public interest work …and if you force someone to do something that they don’t want to do, maybe it’ll actually decrease the likelihood of them doing it down the road.”
However, he also says sometimes you have to be forced into trying something new to realize you’re passionate about it. “Some of my most pleasant experiences have come out of me being placed in a situation that I didn’t really want to be in and then it broadens your horizons and exposes you to something that you didn’t realize you needed exposure to. By exposing people to the public interest and exposing people to how they can use their law degree in a way that helps vulnerable members of our community, the hope is that down the line they’re going to remember that experience and they’re going to remember having an impact on people, and they’ll continue to do it throughout their career.”
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