New leaf
As SJ puts the finishing touches to next week's pro bono special, Jean-Yves Gilg and Rebecca Hilsenrath kick us off with a warning to the coalition: blur the boundaries of legal aid and pro bono at your peril
Pro bono and legal aid share a growing space at the destitute end of the legal services spectrum. Both were born out of an awakening within the profession that lawyers had a duty to offer their skills for free to those who couldn’t help themselves. But, as the legal community prepares to celebrate 20 years of pro bono work next week, lawyers are raising the alarm over the widening justice gap and the depleted number of options to bridge it.
In a collection of essays produced by legal think tank Jures and to be published with next week’s issue of Solicitors Journal, eminent lawyers warn the government that as funding for legal aid is ebbing away, they should not be expected to step into the breach. Like legal aid, pro bono aims to provide access to justice for those who can’t afford it, but it is no substitute for a properly resourced publicly funded scheme, they say in Pro bono: good enough?
Pro bono has unquestionably helped numerous individuals and groups who would otherwise have had no access to justice. Whether it is through the services of a local legal advice centre, a citizens advice bureau, or an organisation dedicated to taking on class action claims on behalf of applicants turned away from legal aid, pro bono makes a difference to the lives of thousands of people. Pro bono also goes beyond case work, supporting focused, long-term initiatives to help certain disadvantaged groups. University-based projects offer particularly convincing examples of this.
The system received a major boost recently, when section 194 of the Legal Services Act introduced the possibility of pro bono costs orders and set up the Access to Justice Foundation as the clearing house responsible for distributing the funds thus collected and giving the sector “control of its destiny”.
But for all the association with local charities and the local community, pro bono remains inextricably linked to City lawyers seeking to bolster their conscience and increase their star rating. While these lawyers may be “well-intentioned” they are the least suited to provide legal advice to the poor, some contributors say, even suggesting that pro bono should be scrapped and replaced by a properly funded legal aid scheme: lawyers with specialist skills would provide the service while the others would contribute financially to the maintenance of the system. There is also the growing perception that the system now benefits lawyers more than clients.
But this need not be an impediment, others argue. Not only can suitably trained City lawyers effectively plug the gap, they can work in partnership with other organisations. Law students and junior City lawyers seconded to law centres are also exceptionally committed, so the fact that it will make them look good on their CVs and increase their firms’ profile is just a bonus. In fact, the competitive element involved in firms trying to outrank each other as caring businesses should help meet demand through an increased offer base, as well as raise standards.
Changing the system
Much of the acrimonious picture which depicted City lawyers taking work away from legal aid lawyers has now faded away. Now the access to justice sector as a whole accepts that both pro bono and legal aid complement each other. The new danger is in treating pro bono as an amateurish philanthropic activity. The sector needs to look again at how it organises itself and be more strategic to make sure that it can reach out effectively to all those in need, not just people in urban areas. And, because the reliance on pro bono is more likely to increase than decrease, the way the service is delivered will have to adapt too. It cannot be simply a question of law firms allocating a growing number of “well-intentioned” lawyers to match the growing number of cases, the mechanics of the system need to evolve.
Externally, legal literacy initiatives developed by LawWorks and by the Public Legal Education project are evidence of a new approach intended to equip people to articulate their problems as legal issues. Internally, one of the most innovative developments in the life of LawWorks is being piloted right now. The new Initial Electronic Advice project could see the charity radically change the way it achieves its objectives.
New world
In an ideal world there should be no need for pro bono but such is our imperfect world that pro bono now provides an essential service for those falling outside the reach of legal aid. There is no imperative requirement on lawyers to join in the pro bono effort, but, 20 years ago, a bunch of lawyers got together to organise an until then unstructured movement.
As they reach this big anniversary, they are now facing the tough challenge of reinventing the structure they designed in different times to remain fit for purpose.
Jean-Yves Gilg is editor of Solicitors Journal
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A time-honoured dictum in the pro bono legal sector holds that pro bono is an adjunct to, not a substitute for, legal aid. While this is arguably stating the obvious, there is considerable overlap between the two. Both are delivered to similar groups of clients, in similar areas of law. There is, however, a crucial difference. As the American novelist Herman Melville once put it: “There is all of the difference in the world between paying and being paid.” Similarly, there is a significant difference between being paid and not being paid. It would be hard to debate this premise, and it is therefore more important (if more complex), to consider not the differences but the overlaps. What does it mean to be an adjunct to legal aid in an age of 23 per cent reduction in the MoJ budget and £350m reduction in the legal aid budget? Pro bono legal services can never replace legal aid. Other arguments aside, the numbers do not add up. The 150,000 qualified solicitors in this country are simply not able, on top of their day jobs, to access the resources of time which would enable them to provide unpaid legal assistance to the growing numbers of vulnerable members of society who are in need of help but cannot pay. The solution First, the MoJ should work together with the legal profession to provide a legal aid system which is fit for purpose and does not result in regional advice deserts through concentrating contracts in a small number of high-capacity providers, but takes into account economic realities and focuses on where assistance can add real value to lives. Second, the MoJ should welcome and collaborate with the support provided, particularly by City firms for legal aid institutions. Increasingly, the distant cousins of magic circle firms and law centres are recognisingwhat each brings to the party and understanding how they can work together for the benefit of all the stakeholders of the profession. The past few months have seen City firms providing financial support, business consultancy and representation for law centres and legal aid providers in difficulty. This is a positive and important development. Third, the MoJ should understand that, while the provision of pro bono projects to fill the gap created by reduction in legal aid contracts is both impractical and wrong, there are important new strategic developments in the pro bono sector which are positioned to maximise the capacity of lawyers not to substitute for legal aid, but to make an important contribution as an adjunct. Perfect partners So, what does an adjunct look like? Pro bono delivery in this country is delivered by an increasingly vibrant and diverse community, from the structured programmes of City firms to the clearing houses, which work together to provide a sophisticated range of ways for lawyers to engage with the sector. The recent establishment of the National Pro Bono Centre in Chancery Lane – the hub which housesLawWorks, the Bar Pro Bono Unit and the ILEX Pro Bono Forum – was an important milestone in coordination and collaboration which will mean a more seamless communication process for all stakeholders. At the same time, the recent important new partnership agreement reached betweenLawWorks and the Law Society is an indication that pro bono is now mainstream. In 2009, LawWorks launched ‘Choices’, an important new pro bono project which works with individual solicitors rather than member firms. Initially focusing on solicitors who have lost their jobs, Choices provides practising certificates, professional indemnity insurance, pro bono volunteering opportunities and access to a Guaranteed Interview Scheme, with signatory firms offering an interview for a suitable published vacancy to any volunteer delivering above a threshold number of pro bono hours. Further plans include working with retired lawyers and lawyers on career breaks. The underlying theme for all groups is the same – enriching the profession and maintaining professional identity through harnessing the profession’s resources to benefit those in need. LawWorks Initial Electronic Advice, a very different project, also works to maximise capacity for the greatest impact. LawWorks receives and triages electronic requests for brief pieces of specific legal information and channels them to lawyers who provide anonymised answers from the comfort of their desks at a time convenient to them. Currently open to advice agencies and umbrella groups, LawWorks is exploring options to open this project to members of the public. LawWorks Clinics establishes and supports free legal advice surgeries often based in frontline community agencies, such as CABs and law centres. This project exemplifies the value added which the pro bono sector can bring to the legal aid sector. This is the legal profession at its best and the proof of the symbiosis is that, just as pro bono delivery enhances the service provided by the advice agency, the demise of the advice agency will see a reduction in pro bono clinics. The public – and the legal profession – will be the poorer for it. The common themes are innovation and partnership in the face of shrinking resources and growing need. All stakeholders in the justice sector are struggling with daunting mathematics. The answer lies not in subtraction but in addition. We need to work together – private sector, legal aid providers, government and pro bono sector – for all the reasons that we went into law in the first place. To support the rule of law and to maintain access to justice in a civilised society. Rebecca Hilsenrath is chief executive of LawWorks |