Expanding the Mandatory Pro Bono Discourse

By April Lount, University of Manitoba, Student at the Faculty of Law

Pro bono stands as perhaps the single most revered practice within the legal sector, embodying a selfless dedication to justice and the public good. These principles not only align with the ideal model of advocacy, but also directly contribute to access to justice, which continues to be in a state of national crisis. It is easy to understand the merits in favour of mandatory pro bono hours. 

However, the goodness of this volunteerism can obscure the reality of its demands: it is work, and it is primarily the work of lawyers in private practice. There appears to be an assumption of homogeneity within the mandatory pro bono discourse, where the implementation would have equal impact across all lawyers. However, the experience of lawyers in private practice is anything but homogenous. This is clearly demonstrated through the disproportionately low rates of women and racialized lawyers in partner and senior leader roles, as well as higher instances of burnout as a function of their work.[1] Despite its well-intentioned nature, the mandatory pro bono discourse risks furthering this disparity. Infringing on autonomy will have unequal and deleterious effects that disproportionately impact women and other underrepresented minorities whose retention is already compromised within private practice.  

The 2018 report “Power, privilege and inequities in the legal profession: Unpacking hegemonic masculinity in the culture of private practice” (the Report) from the Canadian Centre for Diversity and Inclusion speaks to the disparate experiences of lawyers in private practice. The Report explores how “[e]very year, results show that Women and Racialized lawyers are strongly represented as Articling Students and Associates, but their numbers greatly reduce in Partner and Senior Leader Roles.”[2] These numbers highlight the asymmetric experience of law firm culture that adversely affects the success of women and racialized lawyers in private practice. The Report reveals hegemonic masculinity continues to pervade private practice, an insular and hierarchal culture that rewards traditional notions of whiteness and masculinity.[3]

The tension between hegemonic masculinity and minority identities is best encapsulated through the role of entrepreneurialism: “also called competitive masculinity, [entrepreneurialism] is a set of norms and behaviours where workers are valued based on their ability to prioritize all their time and resources for economic efficiency and profit.”[4] This in turn favours lawyers who have the capacity to dedicate the near totality of their time, energy, and identity to the firm, whether that be through billable hours or attending firm events. 

As the Report highlights, the competitive nature of the entrepreneurial value system proves particularly burdensome for women and racialized lawyers. For women, this is largely attributed to the tension between meeting the demands of a masculine and hierarchal legal tradition while still being responsible for family obligations.[5] There are scores of academic sources dedicated to women’s experiences in law. Rather than repeat those arguments here, for the purposes of this blog post, it is assumed based on the well-developed legal discourse that women in law contend with the shadows of a historically male dominated profession combined with their relationship to family building and this has an adverse relationship to their professional trajectory in private practice.[6]

For racialized lawyers, the prevalence of white, male, Anglo-Saxon traditions can produce significant socio-cultural barriers. The entrenchment of cultural norms means those on the fringes often feel like outsiders that have to perform identity assimilation, particularly in work-related social settings—participation in which is perceived as essential for professional advancement.[7] “Note that these social situations [also] link to entrepreneurialism, because social relationships are formed with a focus of getting ahead of work.”[8] The Report includes an example of a racialized lawyer recounting discomfort during weekly gatherings where conversation centred around topics like yachts and golf, unfamiliar to their cultural background. A Muslim respondent highlighted the difficulty of being authentic due to cultural differences, facing challenges balancing religious practices with firm expectations. The Report also identifies a “trend […] where racialized lawyers become solo practitioners because they are unable to succeed in law firms.”[9] The transition to solo practitioner, a notoriously difficult and work intensive form of practice, is perceived as less work overall than having to participate in the identity work they have to perform in private practice.[10]

In Devon Carbado and Mitu Gulati’s oft cited article “Working Identity” they argue that “performing identity is work.”[11] Carbado and Gulati describe masking your true self at work is a way to signal that you are aligned with firm values and is a regular negotiation that everyone must endure and perform.[12] However, while “everyone works identity,” the amount of work that minority “outsider” identities have to engage in can prove inordinately high. Take the Muslim respondent for example, who had to choose between skipping the firm social (which was looked down upon),or going to Friday Mosque. If they chose to attend the social, there would  also be potential “awkwardness” if they did not participate in drinking.[13] This example highlights how seemingly innocuous norms can have inordinate costs to a diverse workforce. Many lawyers may consider drinking with co-workers leisure, but for those who do not come from the same white Anglo-Saxon background, participation can demand significant personal costs. 

The value of these experiences in relation to the mandatory pro bono discourse is to acknowledge that women and racialized lawyers are already performing more work to keep up with the status quo in private practice. The effects of this are clearly demonstrated in the National Study on the Psychological Health Determinants of Legal Professionals in Canada (the Psychological Study), revealing that women and racialized legal professionals experience higher degrees of work-related burnout. The scope of the Psychological Study is inclusive beyond private practice, including lawyers, notaries paralegals and articling students across a broad scope of practice.[14] Therefore, numbers are not representations of the discrete experience in private practice, but speak to the practice of law overall. 

However, a gender and race analysis reveals a statistically significant difference in the rates of burnout in women and racialized lawyers, providing a window into their experience in private practice. For instance, the proportion of women legal professionals experiencing burnout is 63.3% compared to men at 49.4%. For racialized legal professionals, there is a slightly less dramatic but still statistically significant difference comparing the rates of burnout across IndigenousOther-ethnicity and White legal professionals. The proportion of Indigenous legal professionals is highest at 66.2%, Other-ethnicity is 64.2%, compared to the lesser proportion of White at 59.1%. The Psychological Study does not provide the numbers for intersecting identities, like Women/Indigenous, but it would be safe to assume that these produce significantly higher instances of burnout. This would be particularly true in the area of private practice, seeing as a broad measure across legal sectors found the highest instances of burnout to be in private practice compared to other areas of practice.

Crucially, the Psychological Study also identifies risk factors and protective factors, ascribing their respective weights to the rate of burnout. Surprisingly, the single highest risk factor contributing to burnout is emotional demands, well beyond the risk of hours worked and lack of resources. Seeing that a lawyer’s emotional demands indeed have a close relationship to their longevity in law, this may explain the inverse relationship between women and racialized lawyers in partner positions and leadership roles. This is particularly relevant for lawyers in private practice because the Psychological Study also found that “although emotional demands negatively affect all professionals, the impact is significantly greater for those in private practice.”[15] The health data provides insight into the real professional costs born out of increased emotional demands of women and racialized lawyers, like navigating the tension between work and family demands, or needing to perform identity work, or both. 

What’s more, mandatory pro bono infringing on lawyers’ autonomy stands to exacerbate these factors. Where the greatest risk factor for burnout is emotional demands, the single greatest protective factor is autonomy. “Autonomy at work positively affects all work settings, particularly in private practice.”[16] The value of a lawyer’s autonomy cannot be overstated; it is cited as one of the lawyer’s best tools to a healthful and lasting practice. The findings are clear: “autonomy is the resource that has the most decisive impact on health as it is associated with significantly lower levels of stress, psychological distress, depressive symptoms, and burnout.”[17]

In conclusion, the benefits of pro bono legal work cannot be weighed in a vacuum. The discourse surrounding pro bono legal work, and any sort of mandatory implementation, demands a nuanced and considerate perspective that is respectful of the diverse experiences in the legal sphere. The value of pro bono is widely understood, and this post has no intention of lowering its esteem, but there has been too little attention paid to the social consequences risked by a mandatory program. The experiences detailed in the Report and supported by the broader Psychological Study underscore the existing disparities in advancement and burnout rates among lawyers. Infringing on the autonomy of women and racialized lawyers will have unequal and deleterious effects to their advancement and longevity in private practice. 

[1] “Diversity by the Numbers: The Legal Profession” (2018) at 5, online (pdf): Canadian Center for Diversity and Inclusion [https://ccdi.ca/media/1391/20180125-dbtn-qualitative-research-final-updated.pdf].

[2] Ibid

[3] Ibid.

[4] Ibid at 6.

[5] Ibid; Nathalie Cadieux et al, “National Study on the Psychological Health Determinants of Legal Professionals in Canada” (2020-2022) at 184, online (pdf): < https://flsc.ca/wp-content/uploads/2022/10/EN_Preliminary-report_Cadieux-et-al_Universite-de-Sherbrooke_FINAL.pdf> [National Study on the Psychological Health Determinants of Legal Professionals in Canada]. 

[6] See, for example, Canadian Bar Association, Task Force on Gender Equality in the Legal Profession, Touchstones for Change: Equality, Diversity and Accountability: Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993); Fiona Kay et al, “Undermining Gender Equality: Female Attrition from Private Law Practice” (2016) 50:3 L & Soc’y Rev 766; and Jena McGill & Amy Salyzyn, “Queer Insights on Women in the Legal Profession” (2014) 17:2 Leg Ethics 231.  

[7] Supra note 1, at 9.

[8] Ibid at 9. 

[9] Ibid at 14.

[10] Ibid at 9. 

[11] Devon W Carbado & Mitu Gulati, “Working Idenity” (2000) 85:5 Cornell Law Review 1260 at 1279.  

[12] Ibid at 1263.

[13] Supra note 1, at 9.

[14] Supra note 15, at 20.

[15] Ibid at 88.

[16] Ibid at 91.

[17] Ibid at 72. 

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