I have been up in Canada to address the excellent National Pro Bono gathering in Regina Saskatchewan, and hearing about the many pro bono and court innovations moving forward there, as well as from Justice Thomas Cromwell of their Supreme Court on very encouraging progress on the goals set by the recent superb Report of the Task Force established by the Chef Justice.
My speech was about the role of the pro bono community in what I have started to call the struggle for the soul of the profession.
The bar is going to have to decide if it is going respond with protectionism or openness to the rapid changes in society, such as the increasing overall inequality, the dramatic changes in the stratification of the bar, and the transformation of courts’ self-perception as access to justice institutions that are starting to take responsibility for the broad accessibility of the system.
As courts commit to access to justice, they are starting to consider a wide range of innovations such as nonlawyer practice and process simplification. The bar may, as it ultimately has in Washington state with nonlawyer practice, embrace these innovations as part of their commitment to access to justice, or they might respond, as at least part of the bar has in Texas with respect to forms, with protectionism, even if sought to be justified in consumer protection terms.
In this environment, pro bono lawyers and leaders have a particularly important role to play. First, the polling data tells us that pro bono lawyers have very high approval and credibility with the general public and the bar (it’s one of the few Latin words that most people seem to know). Secondly pro bono lawyers have lots of real world experience in the actual system. They can tell both the public and the profession just how bad things can be, just how much difference the innovations can make, and what the consequences can be of failure to permit or adopt them.
So, I would urge everyone involved with pro bono to see their networks as a major tool for change advocacy – not just for pro bono, but for innovation, and for the bar to be at the forefront of change, not fighting it.
As Deborah Rhode said at the LSC 40th anniversary celebration: “We need less protection for lawyers, and more protection for consumers.”
Here are some thoughts on steps that might be taken to help pro bono play this advocacy and conscience role:
- At those gatherings at which pro bono lawyers are congratulated (yes, they do happen!) speakers might also address these broader issues and how pro bono lawyers might address them with bar and public
- At pro bono trainings, these issues might also be addressed.
- To the extent that pro bono programs have “volunteer councils” (and they should), these councils might be given training on the substance of these issues and how to address them.
- Pro bono lawyers might be more assertive in sharing the perspectives they have from working in both the market and non-profit sectors.