What’s so good about pro bono?

The Bar Council and Law Society should not be promoting pro bono schemes, but lobbying government for a levy on City firms to fund legal aid, argues Jon Black of BSB solicitors

Pro Bono translates as ‘public good’ – a misnomer if ever I saw one. The public could be forgiven for thinking it was an endorsement of an aging Irish rocker or a dog food, given the legal sector’s attachment to the archaic Latin term 1,500 years after the Romans left our shores.

Let’s call it what it is ‘for free’ or ‘polyfiller for the justice gap’.

I acknowledge there is a core of lawyers without whose ‘for free’ contributions, landmark decisions would not have been reached. They are beacons of our profession, who are to be applauded.

However they are also largely public lawyers in their own right, with a skill and expertise in these cases and come to public law not as a hobby but a vocation. Cases are referred to them because they are well-regarded, not as part of some PR scheme.

So let’s not call it public good, let’s call it Public Relations, because that is in essence what the Bar Council and Law Society are promoting by encouraging their members to undertake pro bono work.

A number of large City firms invest considerable sums in their pro bono work and require members to partake in community service.

Nothing wrong with that if you can afford the luxury, and it’s admirable that such schemes exist. But to what extent is it in the ‘public good’ that individuals who are denied legal aid should have to rely on them.

Those at the coal face of legal aid are asking why the representative bodies are promoting and applauding pro bono work, when the government is systematically attacking access to justice in the knowledge that pro bono projects will provide back up.

In its legal aid policy, one might wonder whether the endgame of the Ministry of Justice is for cases to be covered by a mixture of legal aid and pro bono work. How long will it be before a defendant in custody, who is refused legal aid due to his complex means, is provided with a representative from a pro bono rota?

It has been argued by colleagues that much of our work already is pro bono, but the government’s treatment of it, is not in the public good.

This is demonstrated by the punitive terms for those unfortunate enough not to qualify for legal aid in the criminal courts. Between 2006 and 2012 such defendants would fund their defence and, if acquitted, could claim reasonable costs back. Practitioners took on these cases knowing that even if the client could not afford private fees they would be able to reclaim reasonable fees. These cases were often taken on the same basis of pro bono cases.

Firms won’t do that anymore because, since 2012 a defendant funding his or her own defence, is not entitled to recoup all of their reasonable legal costs if they are acquitted.  By stark contrast, the government takes a different view in respect of the pro bono sector, with the provision of pro bono cost orders, under s194 of the Legal Services Act 2007.

A successful claimant can claim costs against the losing party, which will be paid to the Access to Justice Foundation. So why not apply the s194 principle to self-funding defendants, who are reimbursed by the prosecuting authority in the event of acquittal? Or perhaps the Crown Prosecution Service could pay into the legal aid fund.

Pro Bono has become a throwaway term – one which all publicly funded lawyers use to describe all those tasks that the government schemes never pay us for, including: chasing up police; waiting at court as a result of delays caused by other agencies; endless calls to clients’ relatives; reading and considering unused material; and transcribing interviews.

Like a Jenga tower, the government casually remove funding for tasks that are vital for our clients. Eventually that tower will collapse as lawyers refuse to provide services as goodwill. Here’s another idea. If pro bono is not really about PR, instead of investing in pro bono the Law Society should charge a levy on City firms that would go straight into the shrinking legal aid fund.

If that is too crude a redistribution of resources there is another way that firms can offer pro bono services. Instead of assigning junior staff to attend legal advice surgeries or take instructions from clients seeking pro bono advise, they could team up with high street practices and law centres to send them to work on secondment for them.

Yes, the firms would be paying their salaries, but not only is it for the public good for them to be sitting behind counsel and listening to interview tapes or scheduling unused material, in many cases it could count as a training seat.

The parent firm and the host firm would also enjoy other mutual benefits from the partnership such as cross advertising and referral signposting. Pro bono work cannot be a sticking plaster to cover the void left by the legal aid cuts, and while the government continues to reduce funds and exploit the goodwill of legal aid lawyers, professional bodies should not seek to encourage lawyers to fill the gaps.

About Jonathan Black

Jon is a criminal defence solicitor at BSB Solicitors and former president of the London Criminal Courts Solicitors’ Association

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