Make lawyers work for free to solve access-to-justice issues, Victoria lawyer says
Critic says proposal would have ethical and competence issues in high-stakes cases
A Victoria lawyer has a blunt solution to the backlogs in B.C.'s court system and the inability for some to afford legal representation: make his colleagues work for free.
Criminal defence lawyer Kevin McCullough has a motion before the Law Society of B.C. that would compel all lawyers to take on a certain number of less-complex cases, pro bono, in the areas of criminal, family and immigration law.
Many people can't afford lawyers in those types cases and as legal aid funding is a long-running problem, some choose to represent themselves.
'No skills to be in front of a court'
"There's an old adage, a lawyer who represents himself has a fool for a client," McCullough told All Points West host Robyn Burns.
"Self-represented people have absolutely no skills to be in front of a court. They're struggling. The courts are clogged with self-represented litigants and the person would be better off with any lawyer representing them."
McCullough believes assigning these people a pro bono lawyer would benefit both them and the justice system by providing more competent advice and speeding up court processes.
Ethical and competence issues
Frances Mahon is a Vancouver criminal defense, immigration, human right and immigration lawyer who does some pro bono work.
She believes there are big problems with McCullough's proposal when it comes to making all lawyers take on family, criminal and immigration cases because they don't have the appropriate expertise.
"They would be terrified to take on this type of case because the stakes are so high for the people involved," Mahon told On The Coast host Gloria Macarenko. "You might lose your child, you might go to jail or you might be deported from Canada."
Mahon says most lawyers she knows take on a certain amount of pro bono work for marginalized people and that type of volunteerism is encouraged within the profession.
The real solution, she believes, is for the province to better fund legal aid, not force lawyers to take on work outside their wheelhouse.
"There's huge issues around ethics and competence for doing that," she said.
"I would never do a complex real estate transaction for everyone. I've never done that before. Simply offering to do that for free isn't going to make me good at it."
Listen to the full interview with Frances Mahon:
Any lawyer better than no lawyer?
So is McCullough asking lawyers to do work that makes them uncomfortable?
"Damn right I am," he said adamantly. "And it's a hell of a lot better than a self-represented litigant."
McCullough argues that "any sort of lawyer with a heartbeat" is better than going it alone in the justice system. Many legal aid cases, he adds, are fairly straightforward and any lawyer could be helpful to the litigant.
He does agree that the funding of legal aid has been a problem for decades but says there simply isn't support from the government or the public to increase spending.
The provincial government, for its part, defended its record on legal aid, touting an additional $26 million for legal aid over the next three years.
It also said it was working with the Legal Services Society, which administers legal aid in B.C., to provide incentives for lawyers to take on more legal aid cases.
McCullough's motion for mandatory pro bono work will be voted on by the members of the Law Society of B.C. at its annual general meeting Oct. 30.
Listen to an interview with Kevin McCullough: