Get out of jail free

Barristers are usually considered to be highly committed to pro bono but, as Matheu Swallow discovers, the commercial bar has nothing to be proud about

When it comes to pro bono, the bar is widely regarded as setting a fine example to the other side of the profession.

However, despite its efforts, the bar still falls a long way short of any kind of ideal and it is the commercial bar that must bear the brunt of any criticism.

Of course there are chambers that stand out as having an exceptional commitment to pro bono work and which form the basis of the bar's reputation.

Doughty Street Chambers, for example, conservatively estimates that last year, its tenants spent £200,000 worth of billable hours working on death row pro bono cases, with some barristers devoting up to 30 per cent of their time to unpaid projects.

The set's efforts involved six Queen's Counsel and 11 juniors working on more than 60 appeals to the Privy Council on behalf of prisoners on death row in the Caribbean.

Doughty Street's barristers have also been widely involved in pro bono in the UK, working on inquests, applications to the Criminal Cases Review Commission and the Criminal Injuries Compensation Board, and in Strasbourg at the European Court of Human Rights, where the set is offering continued support to the defendants in the McDonald's libel case.

But in comparison, the commercial bar commits a meagre amount of its time to pro bono.

Brick Court Chambers, for example, conducts two to three death row cases a year, as well as taking on one or two commercial pro bono cases each month – and these are pretty good statistics for the commercial bar.

The defence put forward by some commercial sets is that their barristers are simply not equipped to handle such work and consequently are not asked to help.

“We are not thought of as an appropriate place. Ninety nine per cent of our work comes from large corporates. We're simply not offered sufficient volume. I would be quite happy for people to do more,” says Robert Ralphs, senior clerk at One Essex Court.

Christine Kings, practice manager at Doughty Street, agrees, but says: “It's not that we want them to do that pro bono work [such as criminal cases]. But they could do all sorts of things, such as working for charities and a whole range of other organisations helping them with their leases and contracts.”

At Doughty Street, for example, tenants offer their time free to The Big Issue as libel readers.

Chambers also work on charitable projects that are not strictly pro bono, but do call on their skills as lawyers.

Doughty Street's major project last year involved providing computers to East Africa, where a severe lack of reference and research materials had been hindering local lawyers.

Organisations were contacted and asked to donate old computers which were then refurbished and reconfigured. Publishers such as Sweet & Maxwell, Butterworths and Blackstone provided free electronic texts and the computers were shipped via the British Council.

Andrew Hall, a tenant of the set, then went out to train the local lawyers how to use the equipment.

This kind of activity requires no specific knowledge of criminal or human rights law – simply time and good old-fashioned cash.

Money is obviously a big sticking point and the message is clear: if commercial sets do not have the requisite specialist legal knowledge to assist, then they should provide something they do have in abundance – cash.

“They can finance the projects,” says Kings.

The leading commercial sets at the bar operate with turnovers in excess of £15m per year.

While many barristers do contribute individually, Fountain Court is the only 'magic circle' set that contributes any money as a chambers directly to the Bar Pro Bono Unit (one of the two main bodies co-ordinating pro bono efforts at the bar) – £5,000 a year.

While this may seem a paltry sum, it actually covers nearly 15 per cent of the Bar Pro Bono Unit's annual expenditure.

One explanation is that there is very little outside pressure being brought to bear on the bar to improve and co-ordinate their pro bono efforts.

Unlike solicitors' firms, chambers pitching to clients are rarely asked about their commitment to pro bono work.

“Our major clients are the big half dozen firms, all acting for corporate clients. They have very little interest in conditional fee agreements let alone pro bono,” says Ralphs.

As a result, very few sets formalise their pro bono commitment.

“We don't see pro bono work as a marketing tool therefore we don't calculate the number of hours spent on it,” says Ric Martin, Fountain Court's chambers director.

However, the absence of any formalised commitment can mean there is less motivation to improve and increase a chambers' pro bono activity.

Helena Miles, chief executive of the recently merged chancery commercial set Serle Court Chambers, says: “I think [pro bono activity] plays a fairly small part [in beauty parades]… We don't as a chambers make formal [monetary] contributions or organise our pro bono commitment formally.

“It tends to be left to individuals in the same way as charitable donations generally. It seems to me that it would make sense to have a more formal organisation. Barristers would probably do more if it was.”

Unfortunately, the Bar Council does not believe it could introduce practice directions that would compel chambers to formally commit to a certain amount of pro bono work a year.

“It is certainly something we would consider, but I'm doubtful that we could introduce such a rule. It would be impossible to police,” says Niall Morison chief executive at the Bar Council.

Morison cites the example of the criminal practitioner who works full-time earning a reasonable living from publicly-funded work who might feel it is unjustifiable to expect him to do much pro bono work.

Morison believes that there is already a huge level of commitment to pro bono work at all levels of the bar and does not think that enforcing a chambers-wide commitment to pro bono is necessarily the right direction.

The Bar Pro Bono Unit's co-ordinator Vanessa Sims says that while solicitors' firms do need to organise their pro bono efforts on a firm-wide basis, it is often easier for barristers to commit their time on an individual basis.

The Bar Pro Bono Unit does ask its members to commit to a fixed period of time, but this runs to a maximum of only three days a year.

“That is not a huge amount for such a wealthy profession,” says one practitioner who is unhappy with the bar's overall commitment to pro bono.

However, the unit operates on a shoestring budget. For the year ending 31 March 1999, through a mixture of donations, covenants, Inland Revenue refunds and other fund-raising the Bar Pro Bono Unit had an income of £34,467 against an expenditure of £37,996.

“Our problem, being a charity, has always been funding. We could do a lot more even simply with a little extra secretarial support,” says Sims.

“We are in active discussions with Peter Goldsmith [the unit's chairman] to improve the funding of the unit from the Bar Council itself,” says Morison, although he concedes that there will be a time-lag before this is effected.

Sims' other main problem is making the bar aware of the unit's function and needs. It was recently criticised in the press for having undertaken less cases than it has barristers. It has more than 1,000 barristers and since it was launched in 1996 it has helped around 800 applicants.

Once again, the problem is resources. “We have a problem with publicity. It is not until the last minute when clients are in court that we are called upon,” says Sims.

Employment is the biggest field making up 28 per cent of cases assisted by the unit between June 1998 and November last year.

Add to this the work of the bar's other main body, the Free Representation Unit, and the Employment Law Bar Association, to which the junior members of most leading commercial sets contribute, and the demand for specialist employment practitioners is clear.

The bar is able, and it would seem willing, to commit greater time and resources to pro bono work.

It is also true that many members of the bar are thinking creatively about employing their skills in pro bono work. For example, Stephen Ruttle QC, a tenant at Brick Court Chambers and a member of the unit's management committee, is pushing for pro bono services to be made available for mediation.

But lack of resources and a chambers-wide commitment to pro bono work, means the commercial bar is still failing to provide sufficient support to pro bono initiatives.

The first step must be to improve awareness of the function and needs of the Bar Pro Bono Unit and the Free Representation Unit, and to do this means money.

The quicker the Bar Council improves its funding of the unit, the better an example it will set.