Pro bono work has long been considered the sine qua non of a career in law. The head of pro bono at Clifford Chance, Michael Smyth, has stated that “I regard pro bono activity as the lawyers' equivalent of the Hippocratic oath”. However, after a turbulent decade of government reforms to legal services, it is perhaps worth taking a moment to reflect of the current and future role of pro bono work in the legal profession.
Despite the overall fall in levels of litigation since the reforms of Lord Woolf, there are still a considerable number of cases which exist outside the realm of the publicly-funded legal services market. The number of these cases may well be set to rise given the problems with the various proposals made by the Legal Services Commission, which have been raised in these pages recently by the Chairman of the Bar Council, Tim Dutton QC.
Labour’s reforms
The primary role of pro bono work is to help those who lack the ability to pursue justice either through private means or the legal aid system. But to determine the current relationship between funded and unfunded legal work, it is necessary to go back to 1996, when Lord Irvine, then shadow Lord Chancellor, stated the principles underpinning Labour’s support of pro bono work. He argued that “there is no greater unfairness than the legally unrepresented applicant against the legally represented employer in industrial tribunals”. Outlining Labour’s law reform proposals in advance of the 1997 general election, Tony Blair accused the Conservatives of reducing the legal aid coverage from 79 per cent of the population in 1979 to just 48 per cent.
Despite this, and in stark contrast to the other public services, legal aid was not set to receive a large injection of funding. Lawyers watched enviously as NHS spending increased from £34.7 billion in 1997/98 to £90.7 billion in 2007/2008. Lord Irvine set the tone when he noted that ‘Labour will have no new money to throw at problems whose solution calls for structural change’. Instead the focus of the Woolf reforms was towards improving alternative dispute resolution, encouraging pre-trial settlement and better exchange of information between parties. Pro bono was seen as a key in the structural reforms that were to take place over the next decade, with the establishment of the Bar Pro Bono Unit by Lord Goldsmith. The position of the Attorney General’s Pro Bono Envoy was established, and Mike Napier QC of Irwin Mitchell was appointed to champion pro bono work.
Plugging the funding gap
Given the emphasis placed on the role of pro bono, a cynic might be forgiven for concluding that the government was attempting to rely on the goodwill of pro bono lawyers, to take up the slack from cases that would have previously received legal aid. This view is supported by the Conservative’s shadow Attorney General, Dominic Grieve. “I have always been extremely supportive of the need for pro bono work, however, I have absolutely no doubt that the government is using pro bono to prop up other legal services”.
As he observes, given the sheer scale of legally funded work in comparison with pro bono, “the idea you can wheel out pro bono to plug a hole in legal aid funding is simply unrealistic”. This reliance is likely to hit the larger city law firms hardest claims Michael Smyth. “It seems logical to predict that increasing pressure will be placed on larger city firms to take up the slack in terms of their pro bono responsibilities”. However this view is strongly refuted by Mike Napier. “The Attorney-General has always made it absolutely clear inside and outside Government that pro bono is not for plugging holes in legal aid.”
Robert Gill, chief executive of LawWorks (formerly the Solicitors Pro Bono Group) takes a different view. "I agree that there is, and there will always be a slight tension between government funded legal aid and pro bono, but this isn't something which should be shied away from. Unmet need exists and we try to help meet that need. Arguing over who should pay or provide is of no help to the person in need.”
Further problems
Nonetheless, as Dominic Grieve has recognised, the tension between funded legal work and pro bono can produce other types of inequality. “One of the consequences of this over-reliance is that firms are cherry-picking the most interesting pro bono work available. There is considerable anecdotal evidence that this is impacting upon the uptake of more routine work.”
The reality of this problem is one which is already facing the larger city firms. Michael Smyth argues that "I do worry that with the Attorney Generals’ well intentioned recommendation that up to ten per cent of pro bono be earmarked for international pro bono, that there will be a drift towards glamour mandates. If American trends are any guide, there will inevitably be a tension between 'trophy pro bono' and traditional 'below the line' welfare advice".
The worry that firms will move towards only taking on ‘trophy’ work is one shared by Kara Irwin, Director of Pro Bono Services at BPP Law School in London. “It is a concern, and it is one that pro bono coordinators on the whole need to be aware of in order to foster a balance in the work done by the firms.” However, these problems have to be weighed against potential positive effects of taking on high profile pro bono clients. “International pro bono work can often capture the attention of lawyers who might not otherwise be involved in pro bono at all”.
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Student pro bono
It’s not just well established city firms who have seen changes in the type of work they take on. As a young barrister, former Attorney General Lord Goldsmith helped to found a pro bono legal advice centre in Bethnal Green in the 1970s. Today, law students are entering an increasingly competitive legal recruitment market and it has become more important than ever to demonstrate a serious commitment to pro bono work.
Paul Wilmshurst is an English barrister currently working for McCarthy Tétrault in Toronto Canada on a Middle Temple Fox scholarship. He spent time volunteering at Toynbee Hall’s legal advice centre during his time as a student on the Bar Vocational Course. “There are many barristers and solicitors who began working at Toynbee as students and there is a real sense of community bound together by the common desire to help those who come seeking help.”
However there are issues over how student pro bono work is funded and supported through institutions. Robert Gill notes that “for every pro bono opportunity law schools are able to offer their students, there are seven or eight students they don't have places for”. Law schools are increasingly recognising the importance of ensuring students have access to well supported pro bono projects, by improving their links with the many community law centres which already exist, and through aiming to change the academic culture which exists in some departments. LawWorks are providing assistance to universities as Robert Gill explained. “One of our central challenges is the need to overcome the notion that law is a purely academic subject. We are working hard to get across message that pro bono is not just a distraction from the law, but integral to it”.
Alternative Dispute Resolution
Given the pressures which have been placed upon pro bono providers, they have been quick to respond to changes in the nature of the legal system. Following Lord Woolf’s reforms, the increase for alternative dispute resolution (ADR) has lead to a demand for pro bono providers to start providing mediation and arbitration services. As Robert Gill states, “there is a growing perception within the Ministry of Justice that mediation can be used relieve pressure on the court system and provide a more equable outcome. Mediation is now part of the national legal fabric, and pro bono mediation forms another part of that natural order”. Given the concerns raised over whether pro bono is being to plug a funding gap for traditional litigation, reliance on pro bono ADR should be treated with caution.
Conclusion
It is clear that pro bono work will continue to remain a vital part of the profession. Yet serious questions remain as to what role it should be expected to play in a constantly changing marketplace. The government would do well to reassure critics that it is unequivocally committed to a vision of pro bono services that run in parallel to a properly funded legal aid system, rather than as a substitute for it.
The author is a barrister.
Free Representation Unit
www.freerepresentationunit.org.uk
0207 611 9555
LawWorks
www.lawworks.org.uk
0207 929 5601
Law Centres
www.lawcentres.org.uk
0207 428 4400
Bar Pro Bono Unit
www.barprobono.org.uk
0207 611 9500
Toynbee Hall
www.toynbeehall.org.uk
0207 247 6943 |
