Following the pieces by Jon Black and James Sandbach, in the debate over pro bono legal work, Diane Astin says there is third way and suggests the starting point must be the needs of the clients not the volunteers.

The two articles on ‘pro bono’ legal work by Jon Black and James Sandbach put forward opposing arguments: Jon criticises the promotion of pro bono work by the Bar Council and the Law Society, while James lauds the value of pro bono and volunteering by lawyers. Both highlight the problem of the term ‘pro bono’ and the fact it covers such a wide range of activities.

Surely no-one would criticise the Law Society call for solicitors to offer pro bono help to the victims of the London Bridge attack or the work being done at the Westway and North Kensington Law Centre for the Grenfell victims. These are examples of the very best of pro bono: lawyers offering their expertise for free to people in a time of extreme crisis.

But, as James points out there is now a wide range of activities that fall under the banner of ‘pro bono’ work — from qualified lawyers advising charities on commercial issues to law students operating pro bono services as a part of clinical legal education.

In between is the type of activity Jon argues should more properly be described as ‘public relations’ – junior staff from commercial firms staffing legal advice surgeries. Jon argues that it would be better for commercial firms to team up with high street practices and law centres and send junior staff on secondment.

How do we judge what is the most useful way for both commercial firms and universities to fulfill their CSR responsibilities?

The answer depends whether we judge what is best for the firms and universities or what is best for the clients assisted by the pro bono activity.

The most common model of pro bono advice services is the ‘one-off’ appointment. If the client’s problem is on-going, advice is on a ‘next steps’ basis; the client is expected to take the steps recommended and return if necessary after doing so.

It is clear why this would be the chosen model for a service staffed by a rota of volunteers — the client can see different advisers as the case progresses and there is no ongoing responsibility resting with the agency in between appointments. Student law clinics have the additional complication of only scheduling appointments during term time when students are available.

However, I would argue that this model is completely inappropriate for most types of social welfare law. Since LASPO removed welfare benefits, early housing advice and non-asylum immigration from the scope of legal aid, these are the types of cases now being dealt with on the single appointment/next steps model.

The problem is that it under-estimates three key features of the cases: the complexity of the law and procedure; the limited capacity of clients to take the appropriate ‘next steps’ without assistance; and the willful hostility and gatekeeping practices they are likely to face if dealing with a public body.

To illustrate this, consider a typical housing client — a private sector tenant facing eviction and therefore homelessness. Advising may require knowledge of landlord and tenant law, homelessness law, public law, EU/immigration law, human rights law and benefits law.

In terms of procedure, it could involve a county court possession action, a judicial review of the housing authority, a homeless appeal in the county court and a challenge to a benefit decision at a tribunal.

The ‘next steps’ advice may involve challenging a housing benefit decision or trying to reschedule other debts and/or negotiating with the landlord. None of these is easy for clients without assistance.

But take the problem a stage further — imagine the client is about to be evicted and become homeless. Then the ‘next steps’ advice would be to make a homeless application under Part 7 of the Housing Act.

The Act makes clear that if the authority has ‘reason to believe’ the person ‘may be’ eligible (an immigration test), homeless and in priority need it should commence full inquiries and provide interim accommodation pending a decision.

But no experienced housing adviser (in London at least) would advise a client to simply attend the council’s office to make a homeless application. At the very least a letter must be sent with the clients making clear that they have taken legal advice and wish to apply as homeless.

And even then it is common that a claim or threat of judicial review is required to force the housing authority to comply with its legal obligations, a client attending alone is likely to be turned away, advised to find their own accommodation and, if lucky, invited to return at the point of actual eviction.

If we judge the effectiveness of pro bono by focusing on the needs of the clients it is clear that most need on-going advocacy, not one-off advice sessions.

Commercial firms wanting to undertake effective CSR work in the legal sphere should seriously consider Jon’s suggestion – form partnerships and offer trainees and junior lawyers on secondment. That way they can learn how social welfare law really works, provide effective assistance to the clients and boost the capacity of the agency.

And for universities and student law clinics? Law students are desperate for legal volunteering opportunities. But social welfare law agencies don’t have the capacity to train and supervise student volunteers. If universities could fund a volunteer co-ordinator at a partner agency this would enhance the capacity to properly use the services of students, help educate students and, hopefully, encourage them to consider a career in social welfare law.

So, let’s debate the value of pro bono but from the starting point that the paramount needs are those of the clients not the volunteers.

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About Diane Astin

Diane Astin is a solicitor specialising in housing law. She is a consultant with Deighton Pierce Glynn and until March 2017 was director of the student law clinic at Westminster University

• Pro bono: the third way - 29th June 2017