Pro bono: do we need to rethink the formula post legal aid?

http://www.guardian.co.uk/law/2012/nov/06/pro-bono-post-legal-aid

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Nowhere is the increasingly fragmented nature of today's legal profession more evident than when considering the issue of pro bono – free legal services delivered by lawyers. From City lawyers working with NGOs on international aid projects in the third world, to running workshops on judicial independence in Albania through to beleaguered legal aid lawyers in Bolton helping the client who otherwise would not be able to secure "access to justice".

It is National Pro Bono week – for a brief time lawyers put aside their usual reserve and bang the drum for all the good work they do for charity. And, to be fair, lawyers' commitment to volunteering is hugely impressive.

A few snapshots from the incredibly broad spectrum of pro bono activity over the last 12 months include: the Free Representation Unit, a charity which helps people who cannot afford representation at employment and social security tribunals, fielded 532 volunteers to act for over 1,000 clients which they reckon is the equivalent of 24,500 hours of pro bono help; LawWorks, the pro bono clearing house, placed around half of 532 applications for legal help from community groups and a further 92 individual cases; and the City firm, Hogan Lovells claims to have dedicated some 104,047 total pro bono hours. For a more comprehensive overview of the state of pro bono, then check out the Pro Bono Yearbook of England and Wales.

The LawWorks pro bono survey – also out Tuesday – reflects the polarisation between City and high street in their relationship to the profession's voluntary activities. It draws on responses from 118 legal practices, mainly from the high street (39%) and international (22%) firms.

Pro bono in City firms has become mainstreamed and so, for example, nearly all (95%) of respondents with more than 250 lawyers have a pro bono policy in place compared to less than one in three high street firms (32%). Most legal practices do not have a dedicated pro bono budget (71% of all respondents) however almost three-quarters (73%) of international firms do.

Unsurprisingly, given the economic climate, some of the larger firms are reporting a significant reduction in the number of hours they did globally in 2010 compared to 2011 – for example, Clifford Chance and Hogan Lovells (HL) are down 9% and 15% respectively. Despite this, it is still a massive commitment - four out of 10 of HL's London lawyers are involved in pro bono activity.

This split in attitude towards the voluntary endeavour of the legal profession is only likely to be further heightened by the challenging environment for law firms: increasing competition on the high street as a result of the Legal Services Act reforms, the brutal legal aid cuts coming in next year, and of course the longest double-dip recession since the second world war.

The old pro bono line ("pro bono is an adjunct to, not a substitute for legal aid ...") has served as a useful reminder to warn ministers of their obligation to secure access to justice to those who otherwise couldn't afford it. But evidently such a consideration was a non-issue for the coalition government. The LASPO (Legal Aid, Sentencing and Punishment of Offenders Act) cuts are predicated on one idea - to effectively filet our system of publicly-funded law by cutting £350m from a £2.2bn scheme. But, perhaps, the "adjunct to" formula needs to be revisited post-LASPO.

I recently blogged about the proposal of Paul im Thurn, senior solicitor at Cumbria Law Centre and co-chair of the Law Centre Federation, for adding £25 to the solicitors' practicing certificate to fund law centres. The value of im Thurn's idea (it seemed to me) was two fold: firstly, to make sure those advice agencies stayed afloat to keep on helping those clients who so desperately need their help and, secondly, to highlight the government's shocking abdication of that responsibility. It seems that a coordinated and imaginative response by the pro bono movement to LASPO could highlight the failure of this government.

Two years ago as part of the JusticeGap series, we published a collection of essays called Pro Bono: good enough? with the rather unwieldy sub-heading "The uneasy relationship between volunteer legal activity and access to justice". One contributor Neil Kinsella, chief executive of Russell Jones &Walker (now part of Slater & Gordon) invoked legal aid's origins:

As the Attlee government never set up a National Legal Service to match the NHS, society has "always had to rely on the profession to help ensure access to justice". If pro bono is "fundamental to access to justice", then it needs to be delivered in a more strategic and organised way, he argued.

There were similar calls for some City firms in favour of a more strategic approach. "Our default obligation is its 'access to justice for the poor' and above all else, our pro bono programs are about social welfare law support," Clifford Chance's then pro bono partner Michael Smyth said.

If that debate about that "uneasy relationship" seemed timely then, how much more urgent does it seem now in the countdown to the April 2013 implementation of the LASPO cuts?

It doesn't look likely to happen any time soon. Back to the LawWorks survey - the vast majority of firms (78%) have made no plans as part of their pro bono activity to respond to the legal aid cuts – apparently, high street firms were "the least likely" to be prepared to offer pro bono services to help those no longer eligible for legal aid. The report noted, "widespread concern about the impact of LASPO but almost no planning or appetite for moving into new areas of pro bono work to fill the gaps".

Jon Robins is editor of thejusticegap.com and is honorary editor of the Pro Bono Yearbook of England and Wales 2012