In 2020, as the COVID-19 crisis gripped Canada and the world, Canadian lawyers and their law firms took to the pro bono barricades.
They offered free legal advice to people who had lost their jobs as companies failed, needed help with workplace health and safety issues, or required assistance wading through government paperwork to qualify for benefits. Pro bono services were extended to small business owners grappling with broken contracts, unsustainable commercial leases, insurance claims, and potential bankruptcies. For essential workers, lawyers offered free estate planning, will drafting, and powers of attorney.
The legal industry’s efforts during the pandemic underlined how critical pro bono legal services can be for those in need. Yet just 18 months before the COVID outbreak, Canada’s pro bono support system was in crisis. Pro Bono Ontario, which fields thousands of requests per year for legal services, nearly closed and was saved at the last minute by a grant from the federal government and donations from the legal community.
Now, five years on from the start of the pandemic, support for pro bono appears to be ebbing once again. A recent report found that the number of hours lawyers at major Canadian law firms are devoting to pro bono has declined sharply since the pandemic—to levels well below the pro bono hours offered before COVID-19.
What’s driving the decrease in hours? The answer is complicated. As a report authored by the Pro Bono Institute and Latham & Watkins noted in 2019, “several factors affect the availability” of pro bono services in Canada, “including underfunding, insurance requirements, uneven coverage, fragmented approaches, discretionary eligibility criteria and a lack of information to potential clients and applicants.”
Declining Hours and Engagement
The latest TrustLaw Index—Thomson Reuters Foundation’s periodic report on pro bono efforts around the world—asked several Canadian law firms about the amount of time they devote to pro bono and how many lawyers provide these services.
On the positive side, the report said, “The pro bono community in Canada has a strong focus on supporting local communities and initiatives through pro bono work with, for example, support for social entrepreneurship and the rights of Indigenous peoples being key focuses of pro bono work.” It added that the “pro bono market is supported by strong legal professional bodies and associations.”
Yet the average number of hours fee earners devoted to pro bono in 2024 declined to 9.9 hours, a decline of 14 percent from the 11.5 hours recorded in 2022, when the last survey was published. Engagement—defined by the TrustLaw Index as the number of fee earners engaged in offering any pro bono services—fell from 46 percent of fee earners to 40 percent. Just 19 percent of fee earners devoted more than 10 hours of pro bono work in 2024, down from 24 percent in the previous survey.
Among partners, the engagement numbers were slightly better—24 percent performed pro bono services in 2024. However, partners averaged 4.1 hours of pro bono work, a 20 percent decline from the previous survey. Eight percent of partners recorded more than 10 hours, a drop from 12 percent in 2022.
Though per-lawyer averages and engagement were down, more firms in Canada said they were formalizing their pro bono efforts—92 percent in 2024 compared with 67 percent in 2022. Firms said access to justice, human rights, and immigration, refugees, and asylum issues were their key areas of pro bono focus.
Low-Water Mark
The TrustLaw Index was established in 2014, and the survey has been conducted six times during the last 10 years. Perhaps unsurprisingly, given the unprecedented nature of the pandemic, average pro bono hours per fee earner in Canada peaked in 2020 at 20.77 hours, with 44 percent recording 10 or more hours of pro bono work.
Hours dropped sharply in the next survey in 2022—a trend seen in countries around the globe. However, the 2024 report shows some recovery in global pro bono hours. Overall, lawyers spent an average of 35.6 hours per year on pro bono work and 43 percent of lawyers did more than 10 hours of pro bono. That compares to 2022’s 33 hours of pro bono, with 38 percent of fee earners devoting 10 hours or more per year. The report said the increases were a “promising signal of a strong legal community that is engaged in pro bono at all levels.”
The numbers in Canada, however, have yet to make a comeback and are now significantly below the pre-pandemic low-water mark—which was 13 hours per lawyer per year recorded in 2016.
Canada’s pro bono numbers are also significantly lower than other key legal markets, the report shows. In Australia, the U.K., and United States, the average number of hours per year was 39.8, 23.6, and 63.4 hours respectively. Three-quarters of fee earners in Australia and the United States, and just over half of those in the United Kingdom, engaged in some type of pro bono work during 2024.
National Targets
In each of those markets, national organizations send a strong message about pro bono goals for legal professionals. For instance, the Australian Pro Bono Centre has set a clear “national pro bono target” of 35 hours of pro bono legal services per lawyer per year. According to the Centre’s website, “there are currently over 300 signatories to the Target, including the 25 largest law firms in Australia. The Target covers over 19,700 lawyers…that’s 1 in 5 lawyers in the country.”
The pro bono target in Australia was launched in 2007 with “the aim of raising the profile of the professional responsibility of lawyers to enhance access to justice for people who would not otherwise have access to legal assistance; work for the public good; and highlight the shared nature of that responsibility across the legal profession.” The 35 hours per lawyer target was chosen in consultation with the legal profession and “represents the minimum number of hours of pro bono legal services that all lawyers should aspire to undertake.”
In the United States, the American Bar Association (ABA), whose model rules of professional conduct have been adopted by nearly all state and local bar associations, states in Model Rule 6.1 that “every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year.”
Lawyers in the U.K. have no requirement for pro bono work, but the Pro Bono Recognition List, chaired by the chief justice of England and Wales, recommends 25 hours per lawyer each year. And as the organization’s name suggests, it publishes a list of lawyers who reach this goal.
Defining ‘Pro Bono’
Since 1998, the Canadian Bar Association (CBA) has held that lawyers have a professional responsibility to voluntarily contribute an identifiable portion of their time without charge or at substantially reduced rates. Like its counterparts at the ABA, the CBA suggests that “each member of the legal profession should strive to contribute 50 hours or 3% of billings per year on a pro bono basis.”
However, the absence of coordinated pro bono organizations in some provinces and territories has resulted in “disparate pro bono opportunities across Canada,” the Latham-Pro Bono Institute report noted.
The CBA also acknowledges that lawyers and pro bono organizations have real questions about which services should qualify as legal aid—and thus receive funding from the government—and which should be seen as pro bono. As Pro Bono Law Saskatchewan asserts on its website, “pro bono legal services are meant to complement, not replace, an adequately funded legal aid system.”
“Legal aid and pro bono in Canada have historically existed…in tension with one another,” Latham and the Pro Bono Institute wrote. Some advocates believe pro bono, while succeeding in increasing access to justice in the short-term, may be reducing “political pressure on governments to maintain and/or increase legal aid funding, and arguably weakens the legal aid service delivery system in the long-term,” the report said.
Eliminating Obstacles
While those tensions may, to some extent, suppress pro bono engagement, so, too, do law firm policies around pro bono. A number of Canadian firms have made positive moves to allow their lawyers to treat time spent on pro bono matters as equivalent to billable hours. However, in many of those cases, the firms have placed a cap on the hours that can receive credit.
In markets like the U.S., U.K. and Australia, where law firm pro bono participation is higher, many firms have dispensed with caps and are setting measurable internal pro bono hours goals for lawyers to meet. In a March interview with Canadian Lawyer, TrustLaw’s Kathryn Beck said that as an example, her organization has “seen quite a lot of growth in Australia over the years because they really invested in that infrastructure.”
In a 2008 study, the District of Columbia Circuit Judicial Conference’s committee on pro bono legal services found that of 24 firms in the Washington, D.C., market with the highest levels of engagement, only four were capping pro bono hours. “There appears to be a relation between higher rates of pro bono performance in law firms and pro bono management practices that generally favor pro bono service,” the committee said.
Those firms with the best pro bono performance “tended, overall, to have policies that favored pro bono work.” Sixteen of the 24 had written policies outlining an expected number of annual pro bono hours to be contributed by each attorney. Eighteen firms had minimum billable hour requirements, with all crediting pro bono hours towards the minimum. And among the four firms that had retained caps, lawyers at three of the firms could receive credit for 100-200 hours per year and 50 hours at the fourth.
Business Benefits
While firms in Australia, the U.S., and U.K. underline that their pro bono commitments are about upholding the legal profession’s core public service values, they have also embraced the idea that their work could provide indirect business benefits.
In those locales, firms appear less skittish about embracing the business benefits of pro bono and thus have a justification for offering more generous policies around billable hours. They have been supported by pro bono advocacy groups that have also acknowledged that firms may be more willing to participate in pro bono if they see a business benefit.
As early as 2000, for instance, the Pro Bono Institute in the United States, was making “a hard-headed business rationale” for pro bono work by law firms. Firms could benefit indirectly with a pro bono program that created “a competitive edge for law firms,” the organization said. Benefits they identified included:
- Recruitment. Pro bono projects could attract associates and lateral partners.
- Retention. Lawyers may wish to continue working for a firm that provides interesting pro bono opportunities.
- Training. Pro bono matters can be cost-effective training opportunities for young attorneys.
- Mentoring. Partners can use pro bono cases as an opportunity to provide hands-on mentoring and real-time feedback for associates.
- Morale-building. Pro bono can serve as a morale booster by allowing lawyers to take on meaningful and engaging work for the public’s benefit.
- Marketing. Pro bono can raise the firm’s visibility in a positive way, strengthen client relationships, demonstrate the firm’s fortitude, and attract new clients.
Beck noted in her interview with Canadian Lawyer that corporate clients are paying closer attention to firms’ pro bono efforts. And in-house lawyers who have worked on pro bono projects “want to partner with law firms with which they have collaborated,” she said. With corporate counsel watching, Canadian firms may wish to invest more time in their pro bono efforts.
Law firms will likely benefit—and clients who don’t have the resources to afford legal services certainly will.
----
David L. Brown is a legal affairs writer and consultant who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms, as a senior content consultant.
