The Price of Open and Free

On May 1st, a Texas law student uploaded the specs for 3D printing of a single-shot pistol to the web – specs that were downloaded over 100,000 times before the U.S. State Department asked that he remove them from his site. That same day, May 9th, U.S. President Barack Obama issued an executive order “Making Open and Machine Readable the New Default for Government Information.”

The juxtaposition highlights how open data efforts are generally considered contributions to freedom of information and the advance of human liberty, but occasionally thought of as dangerous incursions into privacy or threats to public safety.

You might recall the last time guns and open data shared the headlines south of the border. Shortly after the tragic shooting events in Newton, Connecticut late last year, a newspaper serving suburban communities just outside New York City decided to publish on its website amap of gun permit holders. As you might guess, this caused a bit of an uproarnotwithstanding that the map was built on public information, information that had in fact been published by the same newspaper in 2006 (albeit without mapping or precise street addresses).

If a little knowledge is dangerous…

Data, information and knowledge are not the same thing. But we need data to generate information and information to develop knowledge (and we can also hope that knowledge will mature into understanding and then wisdom).

For any in possession of the underlying elements, we would generally consider it virtuous, and often necessary, that such data, information and knowledge be shared so that others might benefit. There may well be points where we can agree that too much information has been shared or that some data is better kept private, lest the cost or harm outweigh the public interest in dissemination, but current trends are decidedly against the gatekeepers and in favour of putting more out there.

Depending on your worldview, you may even agree that the “take the bad with the good” ship sailed a long time ago. After all, the option of hanging about Eden has been off the table since Adam and Eve ate from the tree of knowledge of good and evil, so how much worse can it get? Or consider the tales of Prometheus and Pandora, to whom mankind is said to owe thanks for civilization, suffering and hope.

Open courts, open access and equal justice

Against the book-ends of the dawn of man and the view of some libertarians who think it’s important that we be able to print our own guns, let me get to the point. Our legal system and system of government requires that the creation and application of laws take place out in the open. Our courts must be seen to apply the written law and (in the common law system) the rulings of superior courts. The law and those rulings must be available and accessible to all if we are to benefit from equal justice, but often this does not occur.

Many private acts and regulations of legislatures are not easily found, and many judgments are not released for publication or are only released for publication by some. This is a serious problem. To function in a fair and equitable manner for all, our system requires complete transparency as well as free and unimpeded access. This is not achievable if a judgment is only accessible through the physical court file or through a commercial service or if a province does not publish private acts of their legislature alongside public acts.

The problem is more acute in some provinces, some courts and in some legal domains (notably, family law) than others. It is also problematic among under-resourced administrative tribunals struggling to handle volume, official languages requirements or other challenges that impede their ability to facilitate free and open access. When this information is not accessible, equal access to justice is not achievable.

We already chose “open” over closed

A CanLII search for the phrase “open court” turns up over 2,700 rulings spanning every federal, provincial and territorial jurisdiction, within which you will find judges, human rights adjudicators and others acknowledging that our system holds out openness as a fundamental principle.

Openness is not absolute and where courts and tribunals are concerned, for example, about privacy issues, they have tools at their disposal. I touched on this in a post last year and many people weighed in with excellent comments. Whether through anonymization or simply through not including as much personal detail, judges and adjudicators can take positive steps to make things a little less messy. A 2005 protocol of the Canadian Judicial Council provides guidance (PDF) as does the Office of the Privacy Commissioner of Canada (PDF). Importantly, each document assumes publication and neither recommends limiting access as a means of limiting negative impacts on litigants.

There is and there has always been a price to pay for open and free access to information.

From the tree of knowledge, to the gun permits to your divorce proceedings, opening up access to information can be messy and dangerous, but we have accepted it as necessary to promoting knowledge and understanding and to safeguarding liberty. This is a foundational principle of our society and our system of justice so we should accept nothing less than free and open access to the law from our legislatures and courts as we have already decided to pay the price.

First published on Slaw – May 22, 2013

Unbundling Legal Information

Because law belongs to the people, the governments and courts that issue law must make it available to the people. This is a simple and widely accepted fact.

In practice, as governments and courts carry out their responsibilities to make law available, they do so in a wide variety of ways. For example, the digital versions of federal statutes available from Justice Canada are “official”, and they exist in forms and with rights extended to all and sundry that permit reuse and republication without royalty or permission. However, in some provincial jurisdictions, a surprising range of limitations exist.

The details of those limitations aren’t the point of this article. My focus today is on the role of expanding access to support innovation, including innovation that will come through expanding access to CanLII.

From unbundled local loops to unbundled legal information

From late 2006 to early 2010, I was a marketing director in the wholesale division of a large incumbent telephone company. The word “incumbent” here denotes the company’s role as the original (or at least the successor to the original) phone company in the area. Being first gave the company certain advantages over those competitors that came later. For example, while the first company had, over decades, placed wires in the ground that connected to every home and business, new companies needed to invest heavily to achieve the same connectivity.

In exercising its powers under the Telecommunications Act and to promote facilities-based competition, the telecom regulator (the CRTC) requires incumbent phone companies to “unbundle” access to parts of its network – like “local loops[1]” – on a rate regulated basis.

That experience comes to mind (for me at least) when thinking about Canadian legal information.

Every court and government holds the monopoly over its information and must make it available to the public. CanLII is a publisher, not a monopoly or “incumbent”, and it generally acquires the information in the same manner as is available to any member of the public. However, through 13 years (from concept to today) and over $20M of investment from Canadian law societies through the Federation of Law Societies of Canada, it has built up a solid lead and in the “free access to law” business and its central position may now be having a negative effect on innovation in legal information.

Like unbundling the pieces of a phone company network, there is a need to unbundle CanLII’s data if the full potential of innovation in legal information is to be realized.

Introducing “developer.CanLII.org”

Simon blogged about this last month, but we are now taking the wrapper off our new tool to enable anyone to start building apps and services that make use of CanLII’s case and legislative metadata.

You may not personally choose to read case law structured like this:

{
“databaseId”: “csc-scc”,
“caseId”: “2013scc15″,
“url”: “http://canlii.ca/t/fwhz1″,
“title”: “R. v. Pham”,
“citation”: “2013 SCC 15 (CanLII)”,
“language”: “en”,
“docketNumber”: “34897”,
“decisionDate”: “2013-03-14″
}

But your computer is quite happy to do so, and to read, sift and organize thousands of similar data points in order to build something that queries and delivers precisely what the user needs while dozens, hundreds or more steps churn rapidly and silently in the background.

What will you do with this information? How will you mix it with other information?

CanLII is building a few, small-scale applications to get things going, but the point of unbundling access is to provide the tools to those that see opportunities for innovation, not to dictate how you should innovate.

Free law is still free, but at a price

CanLII’s first phase of tools enable a scope of access that is defined by both our resources and by the limitations places on us by some courts and governments. Developing the tools required a commercial agreement between CanLII and Lexum Inc., CanLII’s technology supplier, and so our ability to expand the range of what is available is naturally influenced by our ability to pay for the necessary development. Similarly, our ability to expand your insight into our data and the permitted uses of what you see is directly connected to the freedoms we acquire from courts and governments to permit that insight and those uses.

We will get there, but in the meantime and to ensure that free law remains free, there will always be a scope of access available to all at no charge.

“ReInvent Law” ain’t got nothing on Canada

If you have been paying attention to the amazing work being done by the people behindReInvent Law, you know that law=data and law+tech+design+deliveryTM is the equation that defines the future of legal information, legal education and the use of technology to increase access to legal services and to justice.

The developer tools and unbundled access to CanLII data are only pieces of the puzzle, but they are pieces generally unavailable anywhere else. To the best of my knowledge, in no other country can you access national and subnational metadata to all current court and legislative information for free from a single supplier.

Now that you can, what will you do with it?


[1] See, for example,http://about.telus.com/publicpolicy/tariffs/docs/CRTC180_1/Carrier_5/c-215.pdf. Defined at page 3; rates at page 21.

First published on Slaw – March 21, 2013

Art, Courts and Social Media

In 2012, the Pew Internet & American Life Project conducted a survey of over 1,200 arts organizations to “understand how arts organizations are using the internet, social media, and other digital technologies to connect with the public.” The study found that enhanced public awareness, sharing and debate brought about by use of social media and other digital technologies are clear drivers of engagement with arts organizations and with art itself. Would a comparable survey of Canadian court use of digital technologies and social media disclose a similar effect on public engagement with the law and the Canadian justice system?

Yes.

While the Canadian judicial firmament may not currently post such striking headline statistics as American arts organizations (99% with a website, 97% with social media presence, 94% posting photos about the organizations and their works), most would agree that we are heading in that direction.

More to the point, we are heading in that direction for the very purpose of increasing engagement, awareness and understanding. Rare (and I would suggest, ill-fated) is the think-piece or discussion paper about a justice initiative that doesn’t include a recommendation to incorporate web publication and engagement tools as a part of the implementation plan.

1.0 to 2.0 to 3.0

Varying quality notwithstanding, all Canadian provincial, territorial, superior and appellate courts have a web presence. All carry some variation of a message explaining the role of the courts in the administration of justice. And all provide a significant amount of additional information such as judgments (directly or as CanLII links), practice notes, and links to educational material and relevant related resources.

Whether you would describe this as meeting a minimum threshold of public engagement or providing a strong foundation for moving to the next stage may depend on your point of view about the obligations of courts as public institutions. From my perspective, and to borrow a line from Patrick Cormier offered at the Modern Courts conference, the courts have exhausted the potential of Web 1.0 (publishing) and, individually if not collectively, judges others in the system are pushing to move forward to 2.0 (interactivity) or even 3.0 (personalization and seamless online/offline integration).

Using digital technologies to achieve internal efficiencies is a major focus on the courts, and as the Modern Courts conference offered significant insight into gaps and challengesobjectivesand best practices for implementation, I won’t dwell on this area. My focus will be on the lessons of the Pew study in matters concerning public access, participation and engagement by means of social media.

Engaging content

Facebook pages or blog posts with pictures of judges at courthouse staff parties may not be the next logical step (and, indeed, might never be), but some element that moves the courts beyond mere one-way publishing is definitely in order.

It is already happening in the periphery through things like the Nova Scotia courts twitter account (though still used solely as a broadcast medium) and through court-adjacent organizations like the libraries. In addition, court administrative services departments across the country are actively seeking to enhance their ability to distribute information and to more effectively manage interactions with the legal community and public at large.

The Pew report [HTMLPDFYouTube clip] describes in great detail the various ways arts organizations use digital technologies and the various objectives to which these technologies are put. Several uses and benefits of social media were identified, but most had some connection back to engaging an audience with the organization by way of its content.

Clearly, arts organizations like opera houses, art galleries, Shakespeare festivals and the like do not offer direct parallels to the courts in all circumstances. For example, “increasing live audience” probably does not appear among the strategic objectives of the courts. Moreover, while they have the potential and occasionally deliver in grand style, the courts are not there to entertain.

However, like arts organizations, courts are in a “content” business. It just so happens that the “content” of the courts’ activities is not so much “performed” or “displayed” as it is “discovered” and “issued”. So, irrespective of its solemn provenance and purpose, court information such as judgments, practice notes and other informational and educational materials is the basis upon which courts can reach out and engage the communities they serve.

Lessons from the arts

Over nine in ten respondents agreed that “social media is worth the time our organization spends on it” (58%-very true; 33%-somewhat true). Positive outcomes of these efforts included:

  • Increased public awareness of the organization
  • Clarity in public understanding of the organization’s mission and how the public can assist/support
  • Connection with “patrons” and other key stakeholders
  • Facilitating connections between and among stakeholders to spread beneficial information

The most common negative outcome was exposure to and amplification of “unfiltered” negative feedback about the organization or its activities. As the flipside of negative feedback is the opportunity to learn, even this negative outcome can spark some positive action.

Digging deeper into the study, respondents offered the following as the main means and purposes for using social media to engage with audiences:

  • 90% of the arts groups in this survey allow patrons to share their content via email, Facebook, or Twitter
  • 82% use social media to engage with audience members before, during, and after events
  • 77% of these organizations also use social networks as a barometer to monitor what patrons and the public are saying about their organizations
  • 65% use social networks to learn more about their patrons through more direct communications, as well as online surveys and polls
  • 52% use social media to crowdsource an idea, from possible programming decisions to the best times for sessions or seminars
  • 35% of these groups use location services such as Yelp, Google Latitude or Foursquare to interact with patrons
  • 28% host discussion groups or threaded conversations

It may be too much to ask to have a court crowdsource a decision and it may be highly improper to for the court to engage with litigants “before, during and after” trials, but it seems quite reasonable to expect a court to make extensive efforts to ensure its publicly accessible material can (subject to concerns about personal information) be easily accessed and widely shared. And while we probably wouldn’t like the idea of courts using Foursquare to track the whereabouts of the lawyers who appear before them, we likely hope that courts already monitor twitter and blogs to improve their appreciation of the experience of their stakeholders.

Some distance is warranted, but separation is not

While I would personally enjoy following tweets from Lord Denning, Alberta’s legendary Master Funduk or Ontario’s Justice D.M. Brown, I can appreciate the impropriety of a sitting judge riffing on the activities of their court 140 characters at a time.

It is also probably best that we be left to simply imagine the possibilities of a blogging, comment or twitter flame war between a Supreme Court justice and a mouthy internet troll. But I see no reason why it would be inappropriate for court administrative staff, as a departmental initiative, to embrace social media tools to advance the objectives of the court and to promote awareness and understanding of the courts’ activities.

Social media is a sufficiently novel development that we are all still learning the ever-changing etiquette and best practices. But to the extent there is a generally-accepted truth of what constitutes effective use it is that authentic participation in the medium is greatly preferred to sterile broadcasts or flagrant self-promotion. So to the first brave souls that venture beyond the relative safety of the court website to walk among the people in the social media world, I offer this advice:

Bring your content, bring your messages, but please bring your ears, some personality and a thick skin as well. You will find among your “followers” many who appreciate the effort and will readily share what you bring to the conversation, and like the arts organizations in the Pew study, you too may find greater success in advancing your primary objectives.

Originally posted on Slaw – Feb 12, 2013

Of blogs and magazines – my 2012 CLawBies nominations

It’s CLawBies time again. The CLawBies – an unfortunately-named (how, exactly, does one clear up a stubborn case of the CLawbies? Are they contagious?) but well-meaning accolade – recognize the best in Canadian law blogging.

Its promoters / judging panel encourage the nomination of three worthy blogs. As they note, part of the fun comes in seeing what blogs the nominators themselves read.

It is hard enough at the best of times to limit the selection to three, but I find it especially difficult this year as more and more online publications converge to the blogging aesthetic.

So here’s my dilemma: Does an online legal magazine become a blog simply because it has (to its credit) abandoned the constraints of print when re-imagining its online presence?

For the purpose of the CLawBies, I hope the answer is yes because I want to give an enthusiastic vote of appreciation to the CBA and its reinvigorated site nationalmagazine.ca.

In the context of a post announcing the new look, editor-in-chief Beverly Spencer observed as follows:

Sixty per cent of those surveyed read the magazine within the week it arrives; readers spend a median time of 20 minutes with it.

In my personal experience, if I hadn’t looked at the print version within a day of it crossing my desk I was unlikely to go back to it and my engagement with it tended to be a one-time event. 20 minutes? Maybe….if the articles caught my attention. More often than not my experience with the print version mirrored my approach to a mid-week morning paper: skim as quickly as possible to make sure nothing important escapes my attention. In other words, a chore.

The new format lends itself very well to blog-style consumption where I can read a single piece or I can explore current and old articles at my leisure. I am certain that I have spent more time on this new site in the past month than I had with the magazine (print and its prior digital incarnation) in the past year.

You might also like…

If Google has changed the way we research, then Amazon has changed the way we – or at least, I – read blogs. Call it shiny-object syndrome if you’d like, but when I find myself on a blog, I look for a reason to stay and explore and I willingly surrender to enticements of the “you might like” variety.  I’m a big fan of blogs with a deep archive of interesting content and a simple way of enabling both self-guided and serendipitous discovery. Slaw.ca and now nationalmagazine.ca meet these criteria for me, and so does nomination number two: Droit-inc.com.

Likely well known to others for a very long time, it’s only in the past year and a half or so that I’ve come to know and frequent this French language law blog. With a professed focus on business issues, but touching a much broader range of topics of concern to Quebec legal practitioners and others with an interest in local and national justice issues, this blog ranks second only to Slaw.ca among my “go-to” sources for staying current on issues of interest to the legal profession.

If nationalmagazine.ca is more magazine than blog, droit-inc.com is more newspaper. With a reasonably predictable publishing schedule and a regular roster of contributors, visitors get a steady stream of fresh and interesting content. But like all good blogs, there are links-a-plenty to take you deeper into the subjects discussed, including links to primary law as well as to many excellent English and French language blogs.

Finally, as I need to carry out many aspects of my role on a bilingual basis, my visits to droit-inc.com are a big part of my ongoing efforts to develop my French language skills.  (Although, I must confess to occasionally allowing Google to translate a few bits and pieces!)

 Is there a blawger’s code? If there were…

…who would enforce it?

I am of the kumbaya school that says the internet is large enough for all manner of law blogger and that we can all co-exist in peace and harmony, even if doing so means we ignore those whose approach grates or whose arguments, motives, or even ethics we might wish to challenge. Of course, if we all felt that way, things would get pretty boring and homogenized pretty quickly. Thankfully, there are others who approach things differently such as my third nominee: Antonin Pribetic of thetrialwarrior.com.

Across his blog and his twitter stream, you can be assured of receiving clear and considered opinions, and, as befits the “warrior” moniker, a robust defence of the principles by which he guides his writing. Topics vary, but thematically readers will see recurring reference to free speech, criminal justice and international law matters. Regular readers will also have little difficulty sensing a wry and occasionally biting sense of humour. To be clear, while his output includes a certain amount of “tear-down”, the focus of his blogging is on “building-up” through informative posts and defence of principles.

Finally, as Antonin’s blog posts tend to come in bursts of activity followed by fortnightly or longer lapses, I’d recommend adding him to your twitter stream to get the full experience!

And to all the others….

With few exceptions, I tend to visit blogs via twitter links rather than through regular visits or RSS subscription. I suspect I am not alone in this.

That said, my clicks come much more easily when I know the destination blog is of high quality.  Too many to list, but know that if you are making an effort to provide legal information, education and entertainment through blogs and twitter, you have my thanks.

A Canadian A2J technology deficit?

With all the excitement of a cosplay buff just ahead of Comic-Con, I anxiously awaited the Law via the Internet conference held in early October at Cornell University in picturesque Ithaca, NY.

The 3 day event included the annual get together of the Free Access to Law Movement, CanLII’s peer group from around the world, as well as 30+ papers, presentations and panel discussions from a highly varied cross-section of legal information innovators.  Sporting attire appropriate to the occasion (I went with a look that screamed I’d-prefer-to-dress-like-I-have-tenure-but-I-just-came-from-a-grant-request-meeting) I took it all in with a mix of delight and dissatisfaction.

On the positive side, in every session I attended and in every video replay I watched a couple weeks later I found great inspiration in the ideas and actions of the presenters. Indeed, I even drew ideas from watching my own presentation – henceforth I will no longer turn my head to the right when presenting as my left-side bald spot gives off a nasty glare on camera.

That’s a great idea! Let’s form a committee to study it!

On the negative side, so many of the projects described and ideas advanced are easily achievable within the competencies of Canadian legal information professionals but (at least to my knowledge) are largely absent, or at the very least, well below the radar. Is the Canadian propensity to place undue faith in “studies” and “blue ribbon panels” part of the reason?

In both form and substance, the LexisNexis e-book “Educating the digital lawyer” captures brilliantly the basis of my dissatisfaction.  I dove right into this text immediately upon learning about it through Connie Crosby’s mid-November Slaw post and, just as at the LVI2012 conference, I was presented with an extensive array of public interest and commercially savvy digital innovations that are entirely within reach of talented Canadian developers but not yet widely prevalent. To be fair, there are lots of great initiatives underway in Canada, but, as William Gibson might say, the digital legal information future is already here, it’s just not widely distributed.

The different levels of sophistication were evident at the recent (and excellent) Canadian Forum on Court Technology conference and a glance at “Report of the Subcommittee on Global Review of the Federal Court Rules” shows the commitment to “further study” is alive and well. See, for example, Recommendation 24:

If the Rules Committee accepts some or all of the recommendations in this report, it should establish a new subcommittee to examine implementation issues.

What are we waiting for?

It is not my intent to be dismissive of courts and the proper exercise of due diligence in overseeing and driving change in the administration of justice. No, my dissatisfaction is reserved for the rest of us and our collective lack of imagination in working within the system more efficiently irrespective of the system’s rate of change. As examples in the LVI2012 presentations and in the LexisNexis e-book demonstrate, we don’t have to wait until everyone else is ready. Here are two innovations, each of which were featured in both fora, that could easily be adapted to the Canadian context or could inspire made-in-Canada innovations.

A2J Author

Developed by CALI, in association with Chicago-Kent College of Law, this freely available tool permits the creation by legal aid attorneys, courts other of “self-guided A2J interviews for use by unrepresented litigants and others in need […that] walk users through a step-by-step question and answer process, which, in the end, creates an (often otherwise confusing) legal form.” This tool, currently running over  600 active interviews from dozens of organizations – including some Canadian ones – was also discussed by presenters at the Canadian court technology conference.

Consequences Calculator

Developed by Columbia Law School, this free tool aids in “legal research for judges, attorneys and legal academics” to demonstrate what happens following conviction under sections of the New York Penal Law.  With point and click simplicity, “once you’ve selected a charge, the [immigration and social housing eligibility] consequences of that charge will appear in a three column break-down on the right that reflects the probability that a consequence will attach to a conviction.”

Understanding law is hard, but following process shouldn’t be

So what’s my point?

Quite simply, small technology projects can have big impacts and we don’t have to look very far to identify the problems or the tools that would help.

In a recent Federal Court ruling, the Honourable Mr. Justice Hughes, himself a member of the aforementioned subcommittee, refused a request from the defendant (Her Majesty the Queen) to strike a Statement of Claim, and instead granted the plaintiffs (5 self-represented prisoners in a federal penitentiary) a 6-month stay to, among other things, “secure competent legal counsel”. Justice Hughes noted that despite the evident legal research effort undertaken by the plaintiffs in bringing their action, the pleadings were deficient in nearly all respects and it was not even clear that the grievances outlined in the claim were a proper matter for consideration by the courts. At paragraph 7, Justice Hughes observes as follows:

[… ]Legal training involves more than just reading materials and copying from precedents. It requires a thorough knowledge of the law and how it is practised, and the exercise of experienced judgment in determining, for instance, whether a claim should be made to the Courts or to some other person or tribunal; how that claim fits within the principles of law; and how that claim is to be set forth properly in the relevant documents in which a claim is submitted. While many people can wield a knife, not all are surgeons. While many people can read Rules of Practice and legal texts, not all are barristers or solicitors. It takes not only knowledge, but thorough knowledge, exercised through experienced judgment to get it right.

Continuing at paragraph 11:

[…] What [the pleadings] must set forth are:

  • the precise circumstances at issue: the who, what, when and where relevant events leading to the complaint took place
  • the resulting effect
  • the standard required by law
  • the manner in which those circumstances failed to live up to the standards required by law
  • what harm resulted

While many Canadian courts and public legal education organizations provide precisely this manner of guidance to self-represented litigants in a variety of formats, are any using an A2J Author or similar interview-style document developer to do so? If not, how difficult would it be to take the above 2 paragraphs of guidance offered by Justice Hughes and build an A2J interview that spits out a Rules-compliant Statement of Claim? Not very, and although the interview itself cannot define the “standard required by law”, it can very clearly focus the attention of the self-rep litigant on the issue at an appropriate juncture.

If the plaintiffs had the benefit of the right tool to develop their pleadings, would the Federal Court be waiting on a third iteration of a Statement of Claim? What savings in time, resources and funding would accrue to the parties and to the system if simple tools were deployed early in the process?

Even if you can’t fix it all, you can still make it easier

A final take-away from LVI2012 comes courtesy of Ed Walters, CEO of U.S. legal publisher Fastcase. Ed reminds us that each player in the legal information or education realm brings content, a service, a product, an expertise or something upon which others can enhance and add value.

No single entity or group can serve all needs or solve all problems, so collaboration and empowerment are key. Over the coming months, CanLII hopes to develop capabilities and services that will facilitate and spur third-party innovation. What excites us most is knowing that so many others are ready to explore new ways of solving old problems that we can’t begin to anticipate the range of innovation to come.

I have every expectation that 2013 will be the year Canada erases the A2J technology deficit.

————————-

This article was first published on Slaw.ca

Carl – a new name in the promotion of access to justice

Call me Carl.

For a week in August, I played the role of law student intern to the Legal Information Institute at Cornell University in Ithaca, NY. My kids were thrilled because it meant they could call me Carl – just like the student intern to Major Monagram on the Disney XD cartoon Phineas and Ferb. While I was not blessed with a theme song like my namesake, I did get a great experience and possibly an early peek on New York state’s latest advance in the promotion of access to justice.

Carl the InternIt was only weeks after my experience that I read of New York Chief Judge Jonathan Lippman and his order implementing a mandatory 50-hour pro bono requirement for applicants to the New York state bar set to take effect January 1, 2015. Like Carl, my internship earned me “college credit” in the context of my LL.M. studies in law and technology at the University of Ottawa (I confess to not knowing Carl’s major).

Since my arrival at CanLII, in each fall and winter term I have hosted students from U of Ottawa’s law and tech JD program (which I suppose would make me Major Monogram). Before learning of the New York initiative I hadn’t thought to frame these arrangements, from either side of the intern process, in the context of improving access to justice. I have been somewhat short sighted in failing to equate student contributions to a not-for-profit with access-to-justice imperatives to the pro bono work students do in the form of direct advocacy in legal clinics.

We are well aware of the benefits student legal clinics like Community and Legal Aid Serivces Programme (CLASP), Student Legal Services Edmonton, Pro Bono Student Canada and others across the country bring to the communities they serve. Clinic work like this is a mainstay of the law school experience for the contributions made, the values instilled and the practical experience gained. Logically, work of this nature will count toward the 50-hour requirement in New York, but were I desirous of writing the New York state bar exams in 2015, would my time at the LII count? It appears so.  In fact, so would the work undertaken by CanLII’s interns past and present (Hi Azrin, David and Adam!) should they apply to the New York state bar.

You can find the directive, § 520.16 Pro Bono Requirement for Bar Admission, here in the New York Law Journal, but allow me to hit the highlights:

  • applicants “shall complete at least 50 hours of qualifying pro bono service prior to filing an application for admission”
  • pro bono service is “supervised pre-admission law-related work” for the benefit of persons of limited means, not-for-profits, or “individuals, groups or organizations seeking to secure or promote access to justice, including, but not limited to, the protection of civil rights, civil liberties or public rights”; as well as specified work within the public service (including courts, legislatures, government). “Partisan political activity”, however, is expressly excluded.
  • authorized supervisors include law professors, lawyers, and judges
  • permitted locations include “any state or territory of the United States, the District of Columbia, or any foreign country”
  • the relevant time frame for completion is from the start of your legal studies to the date of your NY state bar application.

I am struck and impressed by the flexibility and the reasonableness of these requirements. As Judge Lippman notes:

“If you build houses for Habitat for Humanity, that doesn’t count, but if you do legal work for a non-profit like Habitat for Humanity, that could count.”

I also share the Chief Judge’s sentiment that the requirement “will set the pace in the country. On every level it makes sense, for new lawyers, for the profession as a whole, for the legal services providers, for the judges.”

Professor Adam Dodek has written previously about the prospect of seeing the NY model of mandatory pro bono imported into Canada. He and others reported on the trepidation and concern surrounding the whether, how and when it could or should occur in Canada. Quite frankly, after reading the specific requirement recently adopted I have zero concern about negative effects of pursuing this course in Canada – whether through a court mandate or a voluntary move on the part of the law societies. I also feel there is nothing stopping the legal community from moving ahead without waiting the courts or regulators to address the question.

Why wait?

A 50 hour requirement over the course of a 3 year law program is nothing, just ask the CLASP, SLS or PBSC volunteers how many hours they put in over a single month. For students inclined towards a different environment than a public facing legal clinic or to whom formalized internships are unavailable, the challenge for the student will not be in finding 50 hours, but in finding a person and organization ready to let them make their contribution. The greatest and perhaps only hurdle to following New York’s lead rests with those organizations and individuals who will need to make room for “Carl”.

It takes time to provide clear direction, valuable experience and a supportive environment to a student intern. Not quite the burden of supervising an articling student, of course, but a serious endeavour nonetheless. For those of us engaged in activities that seek to advance causes of social justice, whether as part of an organization or as an individual representing a single client, it is worth examining our capacity to take advantage of willing and able student resources.

My ultimate point is this: as anyone who has done it or supervised it knows, “pro bono” work by law students is quite simply a good thing and all students should have an opportunity to engage.  We need not wait for top down solutions and as many formal and informal relationships already exist through which law schools facilitate student placements, I would like to think we are all capable of doing more.

Carl stands ready to serve, will you provide the opportunity?

[This post originally appeared on Slaw.ca]