Is pro bono against the public interest?
15 April 2015
This question has been kicked off again by Dinah Rose QC on twitter:
Judge praises barristers for acting pro bono. In my view, Bar should not act free to cover lack of public funding. https://t.co/BYnYsmazwI
— Dinah Rose (@DinahRoseQC) April 14, 2015And a number of people agreed:
Couldn't agree more with @DinahRoseQC - time has now come for all Bar to refuse to act pro bono in cases where legal aid has been removed
— CrimBarrister (@CrimBarrister) April 14, 2015@OliverRCarter87 @RachelKFrancis @DinahRoseQC The Bar should not be papering over the cracks exposed by Govt policy, simple as that
— CrimBarrister (@CrimBarrister) April 14, 2015@OliverRCarter87 @CrimBarrister @DinahRoseQC I've done pro bono, I value it, but I don't approve of it. Government has forced our hand.
— Rachel Francis (@RachelKFrancis) April 14, 2015I disagree. But I couldn’t get my position into 140 characters. Hence this post.
The main argument against working pro bono, in areas that were previously covered by legal aid, seems to me to be that it insulates the government from the consequences of their decision, but in a way that is both unfair and unsustainable. Unfair in that lawyers shouldn’t be pressured into working for free by being put into a position where they know that, if they don’t, serious injustice will result. Unsustainable in that there is no practical way the the work that should be done under legal aid can be covered by pro bono work, especially once the supply of competent lawyers dries up because they can’t survive without a reasonable supply of reasonably paid work.
I agree that people are being put into an unfair and unsustainable position. However, I just don’t think that pro bono work is actually insulating any group, including the government, from the consequences of legal aid cuts. Pro bono assistance can help individual clients in individual cases – as we’ve seen from some of the heroic work being done in, for example, family cases. But, heroic as that work is, it’s a drop in the ocean compared with the impact of cutting legal aid in tens of thousands of cases. Pro bono can help individuals, but it can’t make a difference to access to justice as a whole. The sad truth is that pro bono work isn’t having much impact on the impact of the cuts.
The other point is that I’m afraid I don’t think those responsible for legal aid cuts care that some of the impact might be being mitigated by lawyers acting pro bono. That would require them to appreciate the consequences of the cuts in the first place (and care). I fear they don’t.
On the other side of the scales, I think doing pro bono work in these circumstances can have a number of benefits. First, and most importantly, it can help individual clients. Second, it can help highlight the consequences of withdrawing legal aid. Third, it helps give the lie to the caricature of the fat cat lawyer. I fear the second and third points are less important that we’d wish, for the same reason that arguments against legal aid cuts struggle to get traction in the first place. It’s simply not an issue enough people care about. Certainly, few members of the general public are going to notice or care about the pro bono work being done. However, I think there is an important discussion going on among commentators, policy-wonks and politicians about the justice system. Pro bono work – particularly work that highlights the negative impact of cuts – can matter there.
Importantly, however, none of this means that anyone should be required, expected or pressured to do pro bono. I’m fundamentally against the idea of compulsory pro bono, which seems to me a bad idea as well as a contradiction in terms. I also strongly dislike the attitude that pro bono is somehow an indispensable part of being a lawyer. Not least because it ignores the fact that much legal work (including legal aid) is already a vocation, pursued at considerable sacrifice.
Finally, although I hope it goes without saying, I have every respect for the people on the other side of this issue. They’re absolutely right that pro bono work should never even be a consideration in these cases. And many people are making very difficult judgments as they try to work towards a solution that doesn’t lead to an irreversible decline in access to justice in the UK. I hope they succeed.
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