Development of Free Legal Services and Infrastructure since 1990
A. Pressure on the Legal Profession to do more Free Work
It was probably during the 1990s that the term ‘pro bono’ became more familiar, probably following usage in US television shows.
In the early 1990s the legal profession’s performance of pro bono work became a political issue within professional bodies and, briefly, for governments. The underlying reasons for this are considered below while the policy and its impact are considered here.While in opposition the Labour Party legal affairs spokesman, Paul Boateng, had threatened wealthy law firms with a framework for them to make a contribution to ‘the traditional duty and responsibility of lawyers as a profession to the proper and equitable administration of justice’. This was widely taken to mean that pro bono work would be made a condition of practice. By late 1994, however, Boateng was proposing a levy on the ‘private legal profession to supplement public resources’.[2328] Whilst opposing this, the Law Society established a Pro Bono Working Party, which also reported in 1994.[2329]
B. The Law Society’s Pro Bono Working Party
The Law Society’s Pro Bono Working Party recommended that solicitors should not be subject to a mandatory professional obligation to provide free legal services. It stressed the point that the profession should not ameliorate or redress, by the provision of free services, the growing legal need created by declining legal aid budgets. It did, however, make six proposals for stimulating the involvement of solicitors in pro bono activity, including publishing a policy statement encouraging solicitors, creating a free representation advice agency and establishing a trust fund to receive voluntary funds to support pro bono activities.[2330]
In 1995, in a speech to the London Solicitors’ Litigation Association, Boateng took a more conciliatory line.
He suggested a mutual responsibility for access to justice, promising that Labour would invest in the ‘legal infrastructure’ if lawyers tackled the ‘Spanish practices and customs’, by which he meant abuses, that contributed to the £1.6 billion legal aid bill. The President of the Law Society criticised the policy of urging pro bono work on lawyers, suggesting that 25 per cent of small firms earned less than £10,000 a year.[2331]The pro bono issue did not subsequently gain much more traction within the Law Society. By the end of 1996, progress was reported on only one of the working party’s six proposals, concerning representation at tribunals. One suggestion of the Law Society’s Working Party, abandoning the term pro bono publico in favour of the potentially ambiguous ‘voluntary legal services’, was adopted, apparently because it provided scope to claim that solicitors were doing more free work.
Boateng wrote to the new President of the Law Society, Tony Girling, threatening ‘alternatives of a statutory nature, if necessary’. This move might have been inspired by the example of the American Bar Association’s projects in Chicago. These provided resources from private practice for specific projects, a model that had been copied in 600 locations in the USA.[2332] Anticipating proposals for a levy on law firms to support pro bono in Labour’s consultation paper Justice Indeed, Boateng wrote to the Law Society and the Bar Council offering collaboration on a ‘public-private partnership’.[2333]
By December 1996, the Labour Party appears to have revisited the idea of legislation to force solicitors to do more pro bono work.[2334] Meanwhile, the failure to create an access to justice partnership with lawyers put the Labour Government into a combative mode. During the passage of the Woolf Reforms and the Access to Justice Bill in 1998 the Lord Chancellor, Lord Irvine, cited the profession’s failings on pro bono in support of his proposals for franchising and block contracting of legal aid to advice bureaux and the proposed Community Legal Service.
C. The Solicitors’ Pro Bono Group
Solicitors and others disappointed with progress on the Law Society’s Pro Bono Working Party Report attended an open meeting at the Law Society in 1996. The meeting was convened by Lord Philips of Sudbury, a solicitor in a leading charities firm and a life peer, and Caroline Knighton, head of Business in the Community Professional Firms Group. The meeting resulted in the formation of the Solicitors’ Pro Bono Group (SPBG), which was initially led by some of the large London firms.
The aim of the SPBG was to promote pro bono work among solicitors generally,[2335] while building relations with Citizens’ Advice Bureaux and Law Centres and establishing a nationwide referral system.[2336] It did not aspire to deliver services directly. The initial target was to increase membership of the large City firms, a number of which paid the start-up costs. By 2000 the SPBG had a full-time organiser and 130 firms and other members, including 40 per cent of the top 50 law firms.[2337]
The focus on large firms was understandable because of their high levels of organisation and resources.[2338] Their positive response probably reflected a concern among elite lawyers with the image and status of solicitors at the time. This was a time of contested elections for President of the Law Society, with many members feeling that a more ‘trade union’ focus was required. Although the SPBG’s publicity materials emphasised the advantages, mainly ‘business’ advantages, of participation, it is clear that large firms had varying degrees of engagement with pro bono publico.
In 1994 a small number of firms had appointed in-house pro bono co-ordinators and begun vying for recognition as leaders in the field. This number mushroomed following creation of the SPBG, which undoubtedly increased the profile and efforts of large firms. LawWorks, adopted as its operating name, formed a partnership with the Law Centres Federation to match lawyers with advice centres.
By 2000 the atmosphere had changed in relation to solicitors’ pro bono. In 2001, the SPBG reported recruiting 500 volunteers to LawWorks, mainly from large firms.[2339] By 2006 it had set up 55 free clinics in Citizens’ Advice Bureaux and local council buildings. It helped 26,000 clients a year in new areas, like bankruptcy, that were not supported by legal aid.[2340] A new scheme, LawWorks for Community, aimed to match up senior solicitors and in-house lawyers with community groups needing commercial advice.
By 2001, 13 of the top 20 firms had pro bono co-ordinators, and many claimed to be performing thousands of hours of free work. For example, Alan and Overy claimed 12,232 hours of pro bono hours per annum and Clifford Chance 18,000 hours.[2341] A survey of a thousand lawyers found 70 per cent claiming pro bono work and 38 per cent of firms having an organised programme. Firms with over 100 partners were least likely to be organised, although lawyers from these firms often contributed.[2342]
In 2001, the SPBG won a £700,000 award from government to allow corporate lawyers to offer free advice by email. David Lock of the Lord Chancellor’s Department said that, although it was no substitute for publicly funded assistance, pro bono work would complement the work of the Community Legal Service.[2343] The SPBG also won a £350,000 grant from government to establish a website through which lawyers could answer questions raised by CABx and similar organisations.[2344] It sponsored projects training corporate lawyers to deal with welfare type areas, providing non-litigation advice to small charities and encouraging pro bono by law students.[2345] Expanding its reach beyond London, with projects in Leeds and the Midlands,[2346] the College of Law promised to provide clinics at its branches in collaborations with regional firms.[2347]
By 2013 LawWorks had a number of delivery modes, offering case brokerage, email advice and the network of free legal advice clinics.
In 2013, 2,883 enquiries were made to LawWorks, in person, by telephone or email, an increase of 56 per cent on the previous year.[2348] Telephone enquiries nearly doubled as legal aid cuts brought about by LASPO 2012 came into effect and funding cuts on advice agencies and Law Centres bit.D. Law Student Pro Bono
Law students have been involved in live casework since at least the late-1970s, at Citizens’ Advice Bureaux and Student Law Clinics.[2349] At the time, their involvement was intended to enrich legal study and make it more relevant. Only a handful of law schools were involved.[2350] The numbers of students working in live clinics burgeoned in the 1990s. By this time, involvement was more likely to be called student pro bono clinic.[2351] In 2011 a LawWorks survey found that more than 65 per cent of all law schools in England and Wales had some form of pro bono activity. This represented an increase of over 40 per cent since similar research was conducted in 2006.[2352] This percentage may, however, give a misleading impression of participation. Because of the cost of supervision, only a small number of students at each institution are likely to perform any pro bono work.
E. The Law Society’s Engagement with Pro Bono
While the growth of the SPBG proved to be important for the development of solicitors’ pro bono, there was a relatively slight impact on the professional body. It was not until September 1998 that the Law Society Council adopted a weak, almost grudging, motion, instigated by the SPBG, that:
Recognises the value of solicitors providing voluntary services, and emphasises the valuable contribution which they already make to the community by providing their professional services and skills to support community and charitable projects;
Welcomes the successful launch of the Solicitors’ Pro bono Group and declares its support for the Group and the work which it does
Encourages solicitors and firms to become members of the Solicitors’ Pro bono Group and to work together and with the Solicitors’ Pro bono Group towards greater co-ordination of pro bono effort; and
Recognises clearly that voluntary legal services work is not and never can be a substitute for a properly funded legal aid scheme.[2353]
Surprisingly, this period marked a high water mark of the Law Society’s efforts.
In 1998, the Law Society supported the creation of the Young Solicitors’ Group Annual Pro Bono Awards.[2354] The following year, Kamlesh Bahl, the Vice President of the Law Society, suggested the adoption of an aspirational pro bono target, possibly to be calculated as a number of hours of pro bono work per solicitor or a target calculated as a percentage of gross fees.[2355] It was proposed to allow Continuing Professional Development points for pro bono work and the allocation of the whole of the Law Society’s challenge fund (£50,000) to develop local pro bono projects. The Law Society trust also made a contribution of £90,000, spread over two years, to the SPBG.[2356] Towards the end of 2004 the Law Society refused to support the SPBG further. This began a desperate search for support of the SPBG’s operating costs.Generally, the Law Society’s ambivalence towards pro bono reflected its awareness that many members were suffering an often disastrous decline in legal aid income. This was a theme of the Law Society Working Party Report. It stated that any obligation to provide voluntary legal services to the poor had been reduced by the impact on ‘high street’ firms of declining income from legal aid and conveyancing. It argued that legal aid firms made a significant contribution pro bono publico because legal aid rates were less than the private rate for work. It was claimed ‘the legal aid factor is largely responsible for the fact that there is no national pro bono scheme, even though 75 per cent of firms do pro bono work’.[2357]
Some opinion in the Law Society doubted whether it should support the idea of solicitors providing free legal services at all. This attitude changed over time, particularly following the formation of the Attorney General’s Pro Bono Co-ordinating Committee in 2002. Latterly, its public pronouncements have been less ambivalent and it has supported solicitor pro bono organisations, like LawWorks, financially. This included a recent, three-year project to increase student involvement in pro bono.[2358]
In 2011 it was reported that that the Law Society was establishing a pro bono committee.[2359] It was promised that this would make recommendations for a more ‘developed policy’ on pro bono. A statement by the Law Society acknowledged that its policy, that pro bono is an adjunct to, rather than substitute for, legal aid was ‘being challenged’. It anticipated ‘increased demand for pro bono services in the face of severely diminished legal aid provision and local authority cuts that will hit the third sector’. The Law Society’s paper linked pro bono publico with the government’s Big Society agenda. It suggested that in a world of commoditised legal services, pro bono demonstrates the ethic of a true professional and that the legal profession had a position ‘that other professions are keen to emulate’.
The issues identified for the Law Society’s committee returned to some fundamental issues: Is pro bono a professional obligation? Should pro bono cover former legal aid areas?; Will pro bono help distinguish solicitors from post-Legal Services Act competitors?; Will commitment to pro bono help counter the charges of self-interest that are levelled against the Law Society in relation to defending legal aid? This list was quite revealing in terms of understanding the competing pressures the Law Society experienced regarding pro bono.
Under the new legal aid provisions introduced by LASPO 2012, the Law Society announced a scheme to test the limits of the legislation.[2360] The Act provides for applications in situations where failure to provide funding would breach the client’s human rights.[2361] This most obviously relates to Article 6 rights to a fair trial, but could involve other articles. The arrangement, made with the Public Law Project, is to support practitioners in submitting exceptional funding applications and in identifying suitable test cases. Unsuccessful applications will not be paid for, which makes the scheme highly suitable for a co-ordinated pro bono campaign.
F. The Bar
In contrast with the Law Society, the Bar positively embraced pro bono during the 1990s. At that time, it had a close relationship with a fully-fledged pro bono service provider in the form of the Free Representation Unit (FRU). The idea for FRU was planted in 1972, by a group of Bar students wishing to represent those unable to afford legal services.[2362] It started in a pub in Chancery Lane in 1972 as ‘Bar Students for Legal Advice’.
The Bar Students cheekily wrote to the Council of Legal Education, ‘You may know that there’s a certain amount of unrest and disquiet among your charges about the education you are giving them. To assist you to make your students happy, quiet and satisfied, we offer you the following advice’.[2363] At the time, the advice was not heeded, but FRU subsequently became an option on the Bar Vocational Course.[2364]
Over the next 20 years the FRU’s office moved from the pub to an attic at the top of Middle Temple Lane and then to a couple of rooms in Gray’s Inn. Since its formation the FRU had expanded its work to embrace a range of tribunals for which legal aid was not available. It aimed to provide representation equal to that available through legal aid. Today, the FRU is authorised by the Bar Council in relation to each of the tribunals in which its representatives appear. The FRU provides more than 1500 training places annually for potential volunteers in employment and social security law.[2365]
The FRU is still independent of, but close to, the Bar. Many senior barristers and judges are former FRU representatives. The Bar Council and Inns of Court are among the largest contributors to FRU’s operating costs on an annual basis. FRU trustees are nominated by the chair of the Bar Council. In 1989, in response to the Green Papers, the Bar warned that the implementation of the government’s proposals would diminish the public service work performed by solicitors and barristers. Nevertheless, it undertook to encourage barristers to do pro bono work and to expand the FRU both in London and in other major centres.[2366]
During the early-1990s, when solicitors were under pressure to perform more pro bono work, the Bar did not seem to attract similar political attention. This was possibly because it was seen to be actively involved in promoting pro bono publico. It may also have been because the numbers and skills of solicitors offered a better prospect of making a dent in the growing legal aid deficit.
In 1992, 2063 cases were referred to FRU by Citizens’ Advice Bureaux and Law Centres. As a result, barristers appeared in 1200 cases. In 1993, this rose to 2400 cli- ents.[2367] In 1995, there was a decline in the number of cases for which FRU representation could be found from 1682 in 1994 to 1394. The chair of the Bar, Peter Goldsmith, took cases himself to encourage more senior barristers to supplement volunteer Bar students and pupils.[2368]
By 2007, the FRU’s caseload fell to around 700 cases a year, comprising 300 employment, 300 social security benefits and the rest criminal injury compensation and immigration.[2369] FRU remained well organised and was now geared to doing more complex cases. It employed administrators and a solicitor to help with preparation. These posts were funded by the Bar Council, the Inns of Court, covenants entered into by individual barristers, subscriptions from referral agencies and income from training days.[2370]
In 1993, FRU appealed to barristers in London and the South East to assist by launching its ‘Chamber Scheme’, which was supported by the Bar Council. In 1996, the Bar Pro Bono Unit (BPBU) was formed as an independent charity.[2371] This joined a number of existing schemes, especially the regional schemes run on the Northern Circuit, Western Circuit and Wales and Chester Circuit, and those run by specialist subject Bar Associations. These included the Employment Law Bar Association Scheme, the Planning Bar Association’s Free Advocacy Scheme and Environmental Legal and Mediation Service.
On the launch of the BPBU, barristers were asked to donate two or three days a year to free work. A contributor to Counsel described this as ‘far too modest’.[2372] In 1996, BPBU had 282 volunteers and 171 requests for help. In 1997 it took on 44 per cent of the cases referred to it, although half just involved giving advice. It was reported that 720 barristers of differing levels of seniority, including 120 QCs, had agreed to provide at least three days a year. This represented less than 10 per cent of the practising Bar.
By 1998, the number of participating barristers had increased to 800, including 130 QCs. Assistance was provided in 400 cases.[2373] Some significant cases involved more substantial assistance. One, a case brought by a pensioner against the National Grid over the use of £47 million of pension fund money to make redundancy payments, was reported in the national press.[2374] In 2002, BPBU had 886 requests for assistance and 1,220 barristers registered.[2375]
In 2000, Bar in the Community was launched to recruit barristers to the management committees of voluntary organisations.[2376] In 2002 the BPBU set up a solicitors’ panel for cases that needed a solicitor as well as barrister.[2377] This comprised 11 firms, including most of the ‘magic circle’. The BPBU received a major grant from the Bar in 2001 but raised some of its overheads independently. In 2005 it offered secondments to members at solicitors’ firms.[2378] It earned praise from the government for its work and for publishing reliable data on the BPBU’s work.
The BPBU has a panel of barristers willing to do pro bono work. A senior review panel assesses all cases for merit, suitability and financial eligibility. The panel is steadily growing. In 2011, it had reported over 2000 barrister members including more than 250 QCs. In 2013, it had 3300 members, including one-third of all QCs. It currently has a full-time staff of seven administrators.[2379]
The Bar operates an ‘opt-out’ contribution, currently £30, for barristers paying practising certificate fees, as a contribution to the BPBU. The Bar Council contributes £60,000 annually, 50 per cent of its operating costs. Formerly housed in the Bar Council administrative offices, the BPBU relocated to bespoke premises at High Holborn with the FRU in 2004.
G. The Attorney General’s Pro Bono Co-ordinating Committee
In 2002 a strong lead from government saw the creation of the Attorney General’s Pro Bono Co-ordinating Committee with a remit to promote, develop and co-ordinate the national effort.[2380] The committee was chaired by the Attorney General, Lord Goldsmith, the founder of the Bar Pro Bono Unit. It had a membership including the Solicitor General, representatives of the profession and various pro bono interest groups. Goldsmith appointed Michael Napier, a solicitor and former President of the Law Society, pro bono envoy, with special responsibility for the provinces.
In 2001, a report by Boon and Whyte for the Nuffield Foundation was circulated to the first meeting of the Attorney General’s Pro Bono Committee.[2381] It proposed limiting pro bono to legal work, but expanding the traditional conception to include transaction and community work. The report also recommended that the legal profession used pro bono to ‘rebuild the connection between legal professionalism and public service’.[2382] It suggested that the professions explore ways of recovering costs in pro bono cases.
The Attorney General’s committee produced a pro bono protocol that clarified many of the issues around pro bono. For example, paragraph 1 unambiguously declared that ‘[w]hen we refer to Pro Bono Legal Work we mean legal advice or representation provided by lawyers to individuals and community groups who cannot afford to pay for that advice or representation and where public funding is not available’.[2383] It went on to provide that ‘[l]egal work is Pro Bono Legal Work only if it is free to the client, without payment to the lawyer or law firm (regardless of the outcome) and provided voluntarily either by the lawyer or his or her firm’.[2384]
With the encouragement of the Attorney General’s committee, the professions collaborated to launch National Pro Bono Week in 2002 to celebrate and encourage pro bono.[2385] In 2003 Michael Napier announced three initiatives. The committee would publish a national protocol setting out key elements of pro bono work,[2386] focus on law student activity and launch a national pro bono website.[2387] The second of these initiatives met a hurdle when, in 2005, the Higher Education Funding Council for England and Wales rejected the idea of funding law schools to provide students with pro bono experience.
The committee tackled the costs issue by proposing the creation of pro bono costs orders. These were implemented by the LSA 2007, section 194, and became operative in courts in England and Wales from October 2008. The section applies to civil court proceedings in which one or both parties are represented by a legal representative free of charge, in whole or in part. In these circumstances, the court may order any person to make a payment in respect of the whole of the representation or the part provided free of charge.
Under the Civil Procedure Rules, the party who received pro bono representation is able to claim costs by preparing, filing and serving a written statement of the sum equivalent to the costs that party would have claimed for that legal representation had it not been provided free of charge.[2388] The court is required to have regard to whether it would have made an order for costs against a party had the person who was represented pro bono been paying for their representation. It is also required to consider on what terms it would have made such an order.
The second problem was to whom the costs were awarded. If they were given to the party aided pro bono, they received an undeserved windfall. If they were given to that party’s lawyer, it would be sanctioning an unregulated speculative fee. Further, the representation would no longer be pro bono. The second innovation in the LSA 2007 was, therefore, the ability of the court to award the costs to a charity prescribed by order of the Lord Chancellor.[2389]
The charity prescribed by the Lord Chancellor to receive sums raised by pro bono costs orders is the Access to Justice Foundation (AJF).[2390] The AJF is a national charity providing grant funding to support pro bono and advice agencies.[2391] The Foundation was established by the Advice Services Alliance, Bar Council, ILEX and Law Society. Former Attorney General Lord Goldsmith QC chairs the Foundation.
The introduction of pro bono costs orders had limited initial success. In the year after they became active, between 70 to 80 per cent of practitioners had not heard of the orders. Those that had either could not be bothered applying for a pro bono costs order or anticipated difficulties in having them agreed or taxed by the court. This suggests that such orders may need to be compulsory to generate significant funds. In the meantime the AJF launched a campaign, It’s Not Just Peanuts, to encourage law firms to donate small, dormant client balances. Only sums over £50 are subject to permission from the SRA.
H. The National Pro Bono Centre
The National Pro Bono Centre houses the professions’ national clearing houses for legal pro bono work. These are the Bar Pro Bono Unit, LawWorks (the Solicitors’ Pro Bono Group) and the CILEx Pro Bono Trust (CILEx PBT). The Centre was, fortuitously, housed in a prestigious location on Chancery Lane, available for five years because of the recession. The opportunity was taken to offer space to four other related charities. These were the Access to Justice Foundation, the London Legal Support Trust, the Environmental Law Foundation and i-ProBono. The Centre is therefore a hub for pro bono work. It offers opportunities for forming the relationships and collaborations that are essential in building a broad-based movement.
www.accesstojusticefoundation.org.uk/downloads/Access_to_Justice_Foundation_leaflet.pdf.
I. Legal Executives
Membership of the National Pro Bono Centre provided a fillip to CILEx’s pro bono efforts. CILEx launched the Joint ILEX Pro Bono Forum and Bar Pro Bono Unit Scheme (the JIB Scheme) for Fellows or Graduate Members of CILEx. This enables them to work with BPBU volunteer barristers in pro bono cases. In 2012, it established an independent charity to work with LawWorks and the Bar Pro Bono Unit. The aim was to increase the engagement of CILEx and other lawyers and trainees in pro bono work and raise awareness of that work. The survey of ILEX members in 2013 revealed a low level of awareness of pro bono. Fewer than one in ten legal executives were aware of pro bono bodies, the Access to Justice Foundation and pro bono costs orders.[2392]
J. International Pro Bono Activity
In addition to domestic pro bono activity, a certain amount of international activity is also promoted by pro bono organisations in England and Wales.
i. The Attorney General’s International Pro Bono Committee
The ambition of the Attorney General’s Pro Bono Co-ordinating Committee did not stop with the national pro bono effort. The Attorney General’s International Pro Bono Committee clearing house aims to support strategic development and co-ordinated delivery of pro bono work across the world. The committee jointly developed international pro bono principles providing best practice guidance and the first draft of a pro bono toolkit to share experience and good practice between Commonwealth countries. The committee is creating a database of international projects. This is aimed at encouraging closer working and information exchange between the agencies sharing strategic aims. It will help prevent duplication and reinvention and will eventually become a public resource.
ii. Independent Projects
A number of independent organisations are based in, or have offices in England and Wales. Some of these either aim to provide free services or promote pro bono activity overseas. The UK-based International Lawyers Project (ILP) merged with the International Senior Lawyers Project (ISLP), the US-based organisation that originally inspired its foundation, to form ISLP-UK. It was thought that ISLP-UK would be better placed to attract ‘experienced lawyers and distinguished law firms to promote the rule of law, human rights and equitable economic development worldwide’.[2393] Another brokerage agency, Advocates for International Development, established in 2006 by a group of 1500 City of London lawyers, became a global organisation.
K. Summary
Pro bono publico is a legal institution that is historically linked to the provision of free representation in courts, probably at the request of judge. By the 1990s, pro bono work occurred in some sections of the legal profession. With a few exceptions, contributions were handled in an ad hoc and uncoordinated way. Whether or not lawyers participated in pro bono work was largely a matter of individual conscience.[2394]
The involvement of lawyers in Law Centre work from the 1960s meant that, when the term re-emerged in the 1990s, advice work was seen as included within the scope of pro bono. During the 1990s, pro bono was reinvented to meet various contemporary needs. The Law Society Working Party tried to ditch old associations and adopt a vague and meaningless term in place of pro bono. This provided a basis for making exaggerated claims for solicitors’ voluntary work.
During the 1990s, many large firms began to adopt social programmes. Some of these were corporate social responsibility (CSR) programmes, based on charity work and volunteering and some provided legal services pro bono. Sometimes the programmes were combined, so that pro bono was offered as an example of CSR. Transaction lawyers were integrated into pro bono schemes. So that the culture was inclusive, pro bono was often defined to include corporate volunteering by support staff.[2395] Similar trends have been evident in other jurisdictions, for example the US.[2396]
The tendency for pro bono to mean a variety of different things was arrested by the agreement of the pro bono protocol at the instigation of the Attorney General’s Pro Bono Committee. This clarified that pro bono was about lawyers providing a variety of legal services, to the same standard that a paying client would be expect, and with no expectation of payment.