The Future of the Service Ideal
A. Pro Bono as Service
Pro bono publico has become a key component of the modern ideology of legal professionalism and the promise to prospective lawyers. This is illustrated by the example of young lawyers at the New York office of Clifford Chance.
The firm was bottom of a national league table measuring associate satisfaction. It sought the reasons from their young lawyers. The complaints outlined in a memorandum to the partners included their ‘deplorable animosity’ to pro bono work. Clifford Chance responded by including the performance of pro bono work as one of seven criteria for promotion.198 Pro bono is a promise the profession may be unable to forget.For the present, and particularly since the decline of legal aid, pro bono is the flagship for the service aspirations of lawyers. Indeed, it is rapidly becoming the defining feature of legal professionalism in common law jurisdictions199 and beyond.200 English lawyers even export the pro bono ideal overseas. For example, following a merger with a German firm, a City of London firm, Lovells, announced it was spreading its pro
197 SRA, Practice Framework Rules 2011, r 4.10.
198 N Rovnick, ‘Clifford Chance New York puts pro bono on associates’ agenda’ The Lawyer 3 February 2003, at 3.
199 C Arup and K Laster, For the Public Good: Pro Bono and the Legal Profession in Australia (Annandale, NSW, Federation Press, 2001).
200 F Regan, ‘How and Why Is Pro Bono Flourishing: A Comparison of Recent Developments in Sweden and China’ in Arup and Laster, ibid, at 148. bono practices to the Berlin office.[2473] Barristers have established a panel to take cases to the European Court of Human Rights.[2474]
Large firms find pro bono a convenient umbrella for a range of increasingly ambitious projects.
Allen and Overy developed a European-wide child protection project with the Belgian charity Child Focus, based on its network of offices.[2475] Under the banner of pro bono, law firms promote the rule of law overseas. For example, a team of associates with a US firm conducted an analysis for the International Bar Association Human Rights Institute of Zimbabwean legislation that clamped down on voting rights.[2476]The increase in pro bono activity and the use of the label for new kinds of activity suggest that pro bono will survive in some form. Lawyers have found a variety of uses for pro bono, including as a vehicle with traditional connotations for new corporate ventures. While entrants to the professions were less likely to be attracted to legal aid and similar work, interest in pro bono appears to be growing.
B. Mandatory Pro Bono
It is doubtful that the legal profession would seek to make pro bono mandatory of its own accord. This would presumably require the SRA’s support. Such a move does not sit easily with its regulatory philosophy. It is possible that the government could put pressure on the profession to do pro bono in other ways. In Australia, firms bidding for government contracts are obliged to do pro bono work. The UK Solicitor General, Oliver Heald, rejected that idea, saying ‘my feeling is voluntarism is the heart and soul of it’.[2477] It is, however, possible that aspirational targets will be introduced as a means of encouraging activity.
C. The Legal Services Market
There are features of the legal services market that render the continuation of pro bono unpredictable. One aspect is the change in professional regulation and culture brought about by the LSA 2007. In the short term, pro bono could be a source of further tension in the relationship with government. Attempts by the state to exploit the gift of professional monopoly to extract free services from lawyers could provoke a negative reaction.
On the other hand, in an era in which the state seeks evidence that institutions serve the public interest, the professions may strive hard to maintain pro bono publico as a symbol of their ‘conscientious administration of trust’.[2478]In the long term the possibility is that, as a voluntary and unregulated activity, pro bono could be a casualty of the gradual de-professionalisation of legal services. The government’s long-term strategy appears to be reduction of the scope of legal aid. LASPO 2012 will reduce assisted cases by 600,000,[2479] the lowest levels of legal aid at any time since its introduction. This will lead to significant job losses in solicitors’ firms and legal advice centres. It may mean that access to law can only be delivered by new methods and, probably, by new providers.
A possibility is that, in time, routine and low value matters will be handled by large organisations, like ABS, and free or cheap legal advice delivered online. In the same interview that the Solicitor General dismissed the idea of mandatory pro bono, he said ‘[t]he new ABS [approach] will change law in many ways’.[2480] They would, he predicted, become a common feature of the high streets with non-legal businesses such as the Co-op underpinning them financially.
The idea that the provision of legal services for the poor would benefit from removing the established professions from them is not new.[2481] In the eventuality that most low value legal work is done by ABS, however, elite lawyers may feel even less connection with everyday legal problems. High street lawyers may not have the capacity to deliver any more than occasional free assistance to their own clients.[2482] If the structure of the profession changes, so that welfare-type work is no longer seen as the work of lawyers, there may be less enthusiasm for doing such work for nothing.
D. The Strategic View
The Nuffield Report argued that pro bono services are unlikely to make up for a lack of public funding, so the profession should focus on the quality of pro bono, not the quantity.[2483] Rather than ensure that all lawyers do a little, it should make sure that what is done is genuinely useful.
For example, it should concentrate on cases that will advance social welfare and rights generally by creating new law. In doing so, the profession may find itself in uncomfortable political territory, such as arguing for benefits for social groups or acting against the state.[2484]At present there are blind spots in pro bono provision that may undermine the ability to hold the state to account. Some categories of case may need legal innovations, for example class actions, before the issues can be aired. Lawyers may need to organise their pro bono effort more effectively to ensure that their role in upholding the rule of law can be fulfilled. There may, however, be limits to what can be achieved in this way. Some types of case, community, environmental or social welfare cases for example, can alienate corporate clients. In the US, the conservative Federalist Society demonstrated outside the ABA’s annual conference in New York to alert clients to the causes their lawyers were supporting.213
Using pro bono as a way of holding the state to a liberal agenda may be a useful way of interpreting the obligation to uphold the rule of law. Within the separation of powers, the judicial arm holds the executive to acco