Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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It's spelt 'pro bono', not 'Abracadabra'

23 June 2015

From the Lord Chancellor, Michael Gove’s speech What does a one nation justice policy look like?:

That is why I believe that more could – and should – be done by the most successful in the legal profession to help protect access to justice for all.

I know that many of the most prestigious chambers at the Bar and many of the top solicitors’ firms already contribute to pro bono work and invest in improving access to the profession. Many of our leading law firms have committed to give 25 hours pro bono on average per fee earner each year.

That is welcome, but much more needs to be done.

I am, perhaps not surprisingly, a great fan of pro bono work. But it is not a magic wand and there are any number of problems with thinking it can either replace legal aid or make a significant difference to access to justice.

#Scale

In 2013-14 108,555 certificates for civil legal aid were granted.1 And it was down from 150,514 in 2012-3 as a result of the significant restrictions on legal aid brought in by the government. That is an enormous volume of legal work.

You may want to follow along on the back of an envelope…

Imagine that you wanted to use pro bono to replace the lost legal aid work. So, you need to find about lawyers for 42,000 clients. For the moment, lets just think about finding a barrister for those who need them. We’ll assume, for the sake of argument, that that’s about two thirds of them. So we need to find barristers for about 27,720 people.

In 2014 there were 15,716 barristers in private practice.2 25% of these are working primarily in crime – we’ll assume that they have their own problems. This leaves about 12,000 civil barristers.

So every barrister in the country would need to do 2.3 pro bono cases a year just to cover the gap created by restricting legal aid. Most of the lost cases are in private family law under the Children’s Act. I’m not a family lawyer, but I assume that many of these cases are complex, lengthy and involve more than one court hearing. We are talking about weeks of work.

All of this is before we even start to think about solicitors. Obviously this just isn’t practical. And this is only to get back to the position in 2012!

These are very rough numbers and I may be out by an order of magnitude. The point is, it doesn’t matter. It’s quite obvious that making any serious contribution to legal aid or along similar lines would require a massive, unprecedented – and quite impractical – level of pro bono work.

#Expertise

Not all law is the same. City firms and highly paid barristers barristers have high levels of skill in particular aspects of law – primarily commercial law, both transactional and litigation. This is not particularly helpful in the average legal aid or pro bono case, which generally aren’t about commercial law at all.

If you’re interested in helping the people in the greatest need you want expertise in welfare / debt, housing, immigration, employment and family law. This is not something city lawyers or commercial barristers have. And why would they? It’s like expecting a family lawyer to be able to sort out a complex commercial tax issue.

This doesn’t mean high flying commercial lawyers can’t do pro bono. There are any number of options. But it does make it harder and there are many cases that they’re simply not able to deal with.

#Access

Pretend that you somehow could solve the previous two problems. How are the clients and lawyers to find each other? Do we expect commercial firms to set up outreach venues throughout the UK? Do existing organisations like the CAB try to fill that role? Who is going to pay for it? These are not simple problems.

#Supererogation

Finally, I just don’t understand why people believe that lawyers are morally compelled to provide their services for free.

I made a glib remark on twitter about addressing issues with the housing market by asking estate agents to act pro bono. But I do think lawyers are different. We expect a professional ethos and an element of public service from lawyers that we don’t form people engaged in purely commercial activity.

But we don’t expect other professions with a similar ethos to be compelled – legally or morally – to do substantial work for nothing.

Doctors are a profession in the same way as lawyers. They have a substantial public service ethos. But while we may admire doctors who join Médecins Sans Frontières‎ we don’t condemn a doctor who simply devotes their time doing the job that they’re paid to do by the NHS. The same applies to the military, police officers, teachers, firefighters, etc.

About the only other people who are expected to offer their professional services without payment out of a sense of vocation are members of the clergy. A Catholic Priest, for example, is expected to administer confession to those in spiritual need, even if they are not being paid to do so.

I rather assume that people don’t expect lawyers to be quite like priests. So why does anyone think that they have a right to demand – not request, but demand – unpaid work from them?

  1. Legal aid statistics: October to December 2014

  2. BSB Practising barrister statistics

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