VI. The Value of Pro Bono Publico

A. Solicitors

i. Data Collection

In the late-1990s, the government’s attack on solicitors’ record on legal aid and pro bono continued unabated. In a House of Lords debate Lord Irvine reported that bar­risters’ and QCs’ fees, and their claims on the legal aid fund were impeding access to justice.

Lord Philips of Sudbury, a leading light in the formation of the SPBG, lamented the lack of ammunition to counter the ‘drip, drip of denigration from government spokesmen’ in the House of Lords.^[2399] Neither the Bar nor the Law Society had, historically, collected data on free services provided by members.^[2400] Even in the US, the American Lawyers’ annual survey of large firm contributions, dated only from 1990.^[2401]

There was some evidence for lawyers’ pro bono contributions, but it was sketchy at best. In 1976, the Royal Commission on Legal Services estimated that 3,300 solicitors supported advice agencies by offering free services.^[2402] In 1989 an independent survey of 59 Law Centres found 369 wholly or partly qualified lawyers, less than 1 per cent of the solicitors then holding practising certificates, offering voluntary services.^[2403]

From the moment the Law Society began collecting data it seemed that the point of the exercise was to prove solicitors provided lots of free services.

In 1993, the Law Society’s’ Pro Bono Working Party attempted a survey of 123 local Law Societies. Only 32 responses were received and none of the respondents held records or monitored free work in any way. The report claimed that many local societies were ‘aware’ that local practitioners were active in assisting Citizens’ Advice Bureaux on a rota basis.^[2405]

As political pressure grew for lawyers to do more free work, the Law Society attempted a publicity offensive. In 1997 it issued a press release, based on a Law Society Research Unit study, claiming that 70 per cent of 460 surveyed firms provide legal advice to private individuals whose cases fell outside the scope of legal aid. The Law Society survey claimed that only 11 per cent of firms provided no such services.

The Law Society press release stated that solicitors in private practice contributed an annual average of 37 hours of services ‘free of charge or at a rate substantially below that normally charged either during the firm’s time or during [their] own’.^[2406] On this basis, the Law Society claimed that ‘value of pro bono work by solicitors is the equivalent to a cash gift to good causes of at least £124 million a year’. This figure was based on volunteer hours claimed by solicitors in 1,113 interviewees, which was then multiplied by an unspecified charging rate.^[2407]

A possible explanation of the discrepancy between the Law Society’s claimed free work and the data that did exist was partly due to the confusion caused by the Law Society. The working party’s recommendation, to drop the term pro bono publico in favour of ‘voluntary legal services’, opened the door to dubious counting of irrecoverable fees or undercharged services, cases handled for ‘a rate substantially below that normally charged’, unsuccessful conditional fee cases, time spent on friends and acquaintances, loss leaders for existing clients and even bad debts.^[2408] These considerations, together with the fact that the Law Society’s data depends on solicitors self-reporting, means that claims for the value of pro bono performed must be viewed with caution.

ii.

Despite the methodological issues, the growth of pro bono activity demonstrated by the annual survey was still impressive. In 2006/07, the value claimed for solicitors’ pro bono work was £338 million,^[2409] in 2009/10 it was £475 million,^[2410] in 2011/12 it was £511m and in 2012/1331, it was £488 million. For the purpose of these surveys, ‘pro bono work’ was defined as the ‘delivery of free legal services to individuals, organisa­tions and communities in need’. The reported volumes typically represented between 2 and 3 per cent of the total turnover of solicitors’ firms.

iii. Participation

There was an increasingly broad spread of pro bono work among layers of the profes­sion and across sectors. In 2002, 45 per cent of solicitors had conducted pro bono work within the previous 12 months. In 2007 the figure hit 51 per cent, a 6 per cent increase on the previous year,^[2411] before falling back to 44 per cent in 2011/12. In 2012/13, 45 per cent of newly qualified solicitors were providing pro bono services, up from 36 per cent in 2012. An equal proportion of newly qualified and partner-level solicitors were involved. There was also a slight increase in the number of in-house solicitors provid­ing pro bono work, but they tended to do less than private practitioners.^[2412]

The number of pro bono hours provided by each solicitor was generally on the rise. In 2002, solicitors performing pro bono work provided 32 hours each.^[2413] In 2007, this fell to 15 hours of free advice a year. This was explained by the Law Society as ‘a spreading around’ of the hours. In 2011/12 the average number hours was 45, a slight fall on the 47 hours reported in 2012.

B. Barristers

The Bar approached the issue of significance in a different way from solicitors. The Bar has tended to focus on the numbers of cases barristers have appeared in, or succeeded in, rather than the hours performed or monetary value on the services provided.

FRU arranges representation in 1,000 cases per annum, appearing in around 50-65 per cent of cases referred.^[2415] In 2013, the BPBU reported that it had handled 1,400 cases, reporting an 87 per cent acceptance rate. Barristers had appeared pro bono in 65 Court of Appeal cases and six Supreme Court cases.^[2416] The approach of Bar organisations in reporting pro bono may grab fewer headlines than seven and eight figure sums, but it makes pro bono contributions feel more tangible and reliable.

C. CILEx

CILEx adopted the Law Society’s approach to monitoring pro bono. A survey of CILEx members conducted in 2013 found that almost one-third had undertaken pro bono work in the previous 12 months, providing a total of 6000 hours of pro bono work. This was said to be worth over £1,000,000 at an average private client charging rate.

VII.