When Mathieu Bouchard was recently faced with a pro bono client who was anxious about an impending court hearing, the Montreal lawyer resorted to a technique he successfully used in the past, and drew a sketch of the courtroom, illustrating where the judge, court officials and the parties would sit, and explained in plain language what to expect.
“We may laugh but for someone who has never been to court it’s impressive and it can be very intimidating,” remarked Bouchard, a partner with Irving Mitchell Kalichman, at a seminar that explored ways to effectively manage pro bono legal work. “But if we can give them an idea as to what will take place before they set foot in court it can make a difference.”
Dealing with pro bono clients, most of whom have never been involved with the justice system and likely will never be again, can be challenging, a minefield replete with potential misconceptions, possible misunderstandings, and false expectations.
But some potential pitfalls can be avoided, by giving pro bono files the same attention as work that pays coupled with equal doses of patience, creativity and flexibility. Large law firms like Ogilvy Renault have developed formalized pro bono policies, overseen by a committee, to help manage services provided to the disadvantaged and organizations with limited means. Pro bono hours are considered billable, are charged internally, and are taken into account in the law firm’s annual budget, explained Christine Carron, a senior partner at Ogilvy Renault LLP in Montreal.
The pro bono committee reviews applications, conducts conflict of interest assessments as it does for any new work that might come its way, and assesses who within the firm has the expertise to take on the mandate. That information is then passed on to the head of the legal department who in turn assigns the pro bono case, added Carron, who worked on a pro bono project, for U.K.-based charity HelpAge International, that issued legal recommendations to help elderly people accused of witchcraft in various African countries.
“This is not a case of asking a lawyer if they want to take on the pro bono file,” said Carron, who noted that the first thing the pro bono committee did was to define pro bono since pro bono means different things to different people. “They are assigned just as they are with paying clients. We don’t ask a young lawyer or an associate if they want to take on a mandate for the Royal Bank, and nor do we do ask if they want to take on a pro bono file. The results that the lawyer must obtain are the same as any other file.”
To obtain “results,” lawyers must gain a firm idea of the client’s problem, goals and expectations – something not nearly as simple as it may seem. While pro bono experts suggest that clients should be able in the initial interview to recount their story in their words, lawyers should nevertheless gently keep their client focused on the legal issues.
“Often pro bono clients do not want the same thing as commercial clients,” noted Bouchard, who practices public law, commercial litigation and class actions. “It’s important to know what they want to determine if it’s possible to obtain it – is it realistic? Secondly, is it worth changing their views or if they don’t to change their views, how can we help them give what it is they want (taking into account that it) may not necessarily be the most logical (solution).”
Communication, then, is key. Speaking clearly and plainly, without resorting to legalese, is essential. Avoid language and terms such as insolvency that may be familiar within legal circles but are completely foreign to clients who have never had dealings with the legal system. If the message is not getting through, it may be that clients think and learn visually instead of through listening as is the case with the majority of lawyers, pointed out Geeta Narang, the executive director of a Montreal legal aid clinic.
“Plain language is important,” said Narang who was named in 2009 “Lawyer of the Year” in the pro bono/social responsibility category by the Young Bar Association of Montreal. “We are verbal. We think using words. But there are a lot of people who we meet who principally do not think by listening but rather spatially and visually,” added Narang who often uses pictograms to get the message across.
Communicating effectively, however, is a two-way street. Being able to listen attentively is just as important as speaking plainly. Besides gathering the facts, lawyers should pay attention to the choice of words being used, the tone and even client’s the body language.
But sometimes communication can be impeded by “do-it-yourself” clients who primarily use the Internet to research and bolster their knowledge about their case, ostensibly developing a firm sense of the legal issue at stake and the legal recourses to be used to remedy their quandary. Except these clients, though they may often speak using the same terminology as lawyers, actually have a poor grasp of the legal concepts behind the legal terms, said Bouchard.
“In the beginning you believe that they know what they want but you begin to realize while speaking to them that though they may using the same words as you, they are not using the same language,” said Bouchard. “The terms that they are using does not necessarily correspond to reality, to the accepted definition of those terms. And that can be very dangerous. So it’s very important to listen very carefully, and ask them the question what it is that they want.”
Carron suggests that once lawyers have the facts of the case, order them chronologically and then go over them with the client. Narang, on the other hand, uses a neat little trick at her legal aid clinic to help her fashion a clear idea of the case. Law students working or volunteering at the legal aid clinic meet with the client at the initial interview, and then after it’s completed Narang appears, telling the client that “we are now going to test the law student who must give us a summary of the case in two minutes,” said Narang, who uses “dummy” bills to pro bono clients to show them the cost of the representation. “It’s an effective way to make sure that we have understood the case.”
Sometimes, though, lawyers dealing with pro bono clients have to literally put their foot down in order to prevent the situation from derailing, said Bouchard. “Just as we do with regular clients sometimes we have to look at them straight in the eye and tell them the legal recourse they are seeking is abusive,” said Bouchard. “They may be vulnerable but one shouldn’t hesitate to tell them that they have to listen to us and reply to our questions. We want to avoid situations where the file gets out of control. We have a reputation (to protect). We don’t want to go to the courtroom looking like a fool.”
Perhaps the most “delicate” situation dealing with pro bono clients arises when an out-of-court settlement is offered, and it’s not for the full amount that they were seeking, said Carron.
“These clients want the full amount,” said Carron. “You have to explain to the client that there are risks, that it is their case and it is up to them to make the decision but if they refuse the settlement that there is approximately 40 per cent chance that they will lose their case. It’s quite a delicate situation.”