Pro bono

What does the future hold?

Lawyers must consider whether their voluntary work should be about securing access to justice for those failed by a shrinking legal aid system.

It's that time of year when lawyers traditionally put natural modesty to one side to "celebrate" the good work they do for no pay.

It's National pro bono week. And there is something more concrete to celebrate than the disparate collection of good deeds that makes up the profession's volunteering.

This year we have the establishment of a National Pro Bono Centre which marks, in the words of the attorney general, Dominic Grieve QC, "a key milestone in the coming of age of the pro bono community".

Its doors opened the day after another significant but far less happy day: the government's spending review. George Osborne delivered a massive blow to our already beleaguered system of public-funded law.

The new centre, which acts as a clearing house for pro bono work in England and Wales, is going to be busy.

The relationship between the pro bono movement spearheaded by the City firms – one of which claims to have spent more than 55,000 hours last year on pro bono activities (according to its website, worth "over £16.5m") – and those excluded from decent legal advice because they cannot afford £200 an hour for a high street lawyer, let alone a City one, and don't qualify for legal aid, is complex.

To what extent should pro bono be about securing "access to justice" for those increasingly excluded by a shrinking legal aid system?

Is, indeed, that the point of pro bono? If not, how does the profession best engage with a weakened legal aid system and those who cannot afford to enforce their legitimately held legal rights?

Pro bono, we are told, is "an adjunct to, not a substitute for, legal aid".

No one wants ministers to use pro bono as an excuse to take money away from legal aid.

Frankly, they don't need an excuse. We now know the coalition government plans to take £350m out of the £2.1bn scheme. But it was New Labour that capped the legal aid budget and for their last four years in office they in effect froze it.

In a new collection of essays examining the "uneasy relationship" between pro bono and "access to justice", Sir Geoffrey Bindman argues that the movement has become something of a smokescreen whereby the profession evades its wider responsibility to ensure access to justice.

The veteran legal aid lawyer (while applauding "the energy and commitment" of lawyers committed to pro bono) is one of a number of contributors invoking legal aid's origins in the welfare state created by the Attlee government in 1949.

According to Bindman, "the price paid by the legal profession for avoiding the imposition of an NHS-style National Legal Service" was its "commitment as a profession to manage legal aid".

"Lawyers whose clients can afford to pay for their services have largely turned their backs on it," he writes.

Before legal aid, there were the "poor man lawyers" schemes, precursors to today's pro bono movement. Prisoners who could not afford a lawyer had to rely on "dock briefs" – whereby any wigged and gowned barrister in court could be required to defend an unrepresented prisoner.

Apparently, this was not a popular professional duty. One news report from 1944 refers to the "general scuttle" of counsel exiting court when a prisoner asked for representation.

Increasingly, there are calls from all parts of the profession to adopt a strategic and more co-ordinated approach to pro bono. Others will resist on the grounds that such calls offend the spirit of what is essentially a volunteer activity, and others will warily watch to see if ministers try to co-opt it to lessen their commitment.

"This is an important moment to consider exactly what we have meant when we have said, sometimes genuinely, sometimes shrilly, that pro bono is not a substitute for legal aid but rather a complement to it," writes Michael Smyth, who recently retired as Clifford Chance partner with responsibility for pro bono.

He has said CC's "default obligation" on pro bono was "access to justice for the poor". Will anyone else follow?

(Published by Guardian - November 12, 2010)