Lawyers in Ottawa and Cornwall, Ont., have been noticing that it has become harder to get legal aid certificates and it’s taking longer for clients to get through the application process.

The clients have to be referred by duty counsel. In Cornwall, local applications are no longer taken, and clients must use a 1-800 number. So much for Justice on Target, which was meant to speed criminal cases through the system. 

So, slow retainer or no retainer, do you speculatively hold your clients’ hands through those remands, do you do those bail hearings or do you just tell them to return later on once they have a certificate? Why work for free?

Criminal lawyers offer pro bono services, but not always intentionally, of course. Leaving aside the public interest in free work, not to mention the government’s, what kind of pro bono work delivers the most benefit to you, particularly in these lean times?

New lawyers need to attract clients, establish their reputations, and acquire expertise, all of which continues to be important throughout their careers. 

For solicitors, the will is a loss leader. In defence work, by analogy, there are two loss leaders. The first is the bail hearing if the client is in custody. The other one is the free consultation.

Legal aid work is already pro bono work, and certificates don’t pay well for bail hearings, if they pay at all (see “LAO introduces ‘diabolically comprehensive’ block fees,” Law Times, May 3). There certainly are divergent opinions about performing bail hearings without a retainer.

Given the importance of the liberty of the subject and that clients’ options and ability to defend themselves are circumscribed by being detained, they are entitled, in my opinion, to a bail hearing by counsel of choice. It is a loss leader. Clients who appreciate the effort you made will try to retain you.

But some clients can never retain you. Their cases aren’t serious enough for Legal Aid Ontario to issue a certificate and they are too poor to pay. So where to draw that line? Some of these people are established clients.

My own comfort level has been that I prefer to work for free, ironically, in cases that I estimate are likely to result in a withdrawal or diversion. While it’s ironic that one could work towards the best possible outcome for free, it may involve the least amount of work. I don’t want to sit in a busy plea court all day long waiting to do a free matter. 

I have done free appeals, for disbursements only, but never a free trial. My logic on appeals is that if the client retained me to do the trial and I believed justice hadn’t been served, then I wanted to try to correct that. 

Why not a trial? I had a long discussion with a senior lawyer about this. He argued that he would do trials for free but not appeals.

My concern was the cost of disbursements and transcripts, as well as the length of the matter, but his position was that if he agreed to help a client, then he would never get off the record unless there was a breakdown in the solicitor-client relationship. Yet he wouldn’t do an appeal. So we each drew our line in the sand but in a different place.

When defence lawyers take calls during the night from people under arrest, it’s often pro bono work. Still, any lawyer who doesn’t take them is potentially cutting off a huge source of business.

Nevertheless, doing free work doesn’t absolve the lawyer from the responsibility of providing sound advice and effective assistance, keeping proper records, avoiding conflicts, and even docketing time. 

I have a rule that the pro bono client must be governable and respectful - amazingly, this is beyond some of them - and truly impecunious. One client who I acted for pro bono thought it was acceptable to show up a couple of hours late for court. That was a deal breaker.

Even a paying client who’s rude to your staff isn’t worth keeping. But that client who I refused to act for went on to refer me to her boyfriend, who did retain me.

We all have particular communities that we like to help, and representing new immigrants and impoverished students can give great personal satisfaction and may cost you very little.

There’s another consideration. As prospective clients travel through the Byzantine legal aid application process, they may breach their bail. Then, ironically, the matter should be serious enough for a certificate.

Fit the free work around paid work, and if a student or junior can do it, that’s all the better. What goes around comes around, and you and your office will have goodwill, a good client base, and the potential for more retainers.

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Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@magma.ca.