Social conscience

As the top law firms come out in force for Pro Bono Week, Jon Robins asks: will the Government's support of free advice undermine legal aid firms' efforts to gain funding?

Solicitors in Newcastle helping to establish a legal aid programme in Kenya's Rift Valley, a free legal service for the victims of the Nazi regime in Germany being provided by Manchester law firm Fentons, or the joint endeavours of Ash-urst Morris Crisp, CMS Cameron McKenna, Rooks Rider and Slaughter and May in supplying volunteers for three evening sessions a week at the Islington Law Centre in North London. On the face of it the three projects could not be more diverse, yet they are all illustrations of the kinds of work that are being showcased at the second National Pro Bono Week, which takes place this week.

Is the wildly disparate nature of 'pro bono' – which means all things to all people within the profession but not a lot to anyone outside – its strength or its weakness? “It's definitely a strength,” reckons Michael Napier, the immediate past Law Society president, who now rejoices under the rather grand title of 'pro bono envoy' to the Attorney-General. “It's as varied as the profession and the individuals in it,” he adds.

It has been a year since Lord Goldsmith QC set up his pro bono committee, which comprises the Attorney-General himself, the Solicitor-General Harriet Harman QC, and representatives from the main pro bono groups, advice agencies, the Law Society and the Bar Council. “The great strength of pro bono is that it's not for conscripts, nor is it prescriptive in its nature,” says Napier. “If anybody can give me some kind of definition of unmet legal need and social exclusion, then you might try and define a pro bono model for it. But people whose need is unmet are of a very wide variety and it needs to be flexible to meet it.”

Over the last 12 months, it seems that the pro bono movement has finally come of age. “If you were to characterise pro bono four years ago, it would have been as almost

a minority pressure group,” reckons Terence Black, managing director of BAE Systems Capital and vice-chair of the Solicitors Pro Bono Group (SPBG). “But now it's starting to go mainstream.”

“There has always been a pro bono tradition, but it has tended to be offered and accepted on an ad hoc basis,” says Robin Knowles QC, vice-chairman of the Bar Pro Bono Unit (BPBU). “But the value of giving those who need help a clearly identifiable place to approach, and for those professionals willing to help a clearly identifiable place to make that offer, is increasingly important.”

The unit, one of a number of bar initiatives, runs a 'clearing house' system, matching up those seeking advice with those providing it, which is now being replicated throughout the profession.

One reason for pro bono's newly-arrived status at the heart of the profession is the enthusiastic endorsement of the Attorney-General. Lord Goldsmith has pretty impressive pro bono credentials and, along with a successful career at the commercial bar, he set up a free advice centre in East London's Bethnal Green in the 1970s and was a founding member of the Bar Pro Bono Unit. His choice of envoy is a good start. Napier describes his commitment to pro bono as “part of his lifeblood”, and his own involvement dates back to 1974 when he established the Pitsmoor Citizens Advice Bureau in Sheffield.

The Attorney-General's pro bono committee has published its pro bono protocol, produced jointly by the BPBU and SPBG. The protocol sets out basic standards for legal pro bono work.

In the mood of unbridled public-spiritedness on show this week, it seems churlish to raise a sceptical voice. However, given the crisis in legal aid, it does not take a conspiracy theorist to detach an ulterior motive in the Government's sudden interest in pro bono. It is a view that Napier is keen to kick into touch. “The message of the Attorney-General and the one I carry as his envoy is that pro bono is an adjunct to, and not a substitute for, legal aid,” he comments.

For Napier, the real challenge of his new role is improved coordination within the profession “so that we can match the providers of pro bono to the people who need it and spot where the gaps are – which in legal aid-speak you might call the advice desserts”, he explains. To this end, a new website ( will go live this week. According to Napier, the site will play a pivotal role by becoming “the marketplace and the exchange forum” for all the organisations involved – the providers, the receivers and the members of the public – in pro bono work.

The pro bono momentum has continued apace over the last 12 months with the launch of a protocol (backed by the SPBG and the Bar Pro Bono Unit) that sets out the core values of pro bono, as well as the second National Pro Bono Week, which will

involve solicitors, barristers and legal executives and play host to 26 events up and down the country.

Of course, there are still a few small and some not-so-small issues to resolve before the full 'mainstreaming' of pro bono is achieved – not least a final resolution on that vexed issue of whether to ditch the Latin name for a more 21st century one.

“I think one reason why pro bono isn't playing its part in the provision of legal services as it should is because of the very words 'pro bono',” Lord Woolf was reported to have said recently. Such is the Lord Chief Justice's belief in the deterrent effect of its archaic title that he has come up with his own rather literal suggestion: 'Law for Free'. Although, judging by the non-response from the profession, that idea appears to have fallen somewhat flat.

“I think 'pro bono' as a name is here to stay,” reckons Napier. “Nobody can think of a decent alternative and, certainly within the legal system, the voluntary sector and the advice network, it's sufficiently well understood. What we have to do is ensure that the phrase has a higher profile in the community.”

“I don't see any need to change,” agrees Knowles at the Bar Pro Bono Unit. “In one sense pro bono has the advantage of being a badge that's specific to legal volunteering, but it needs to be explained, and that's no bad thing to have the task of explaining the way in which the legal community is prepared to make a volunteer contribution.”

Of course, there are issues that run deeper than that, such as how pro bono coexists with the publicly-funded world. As well-off lawyers extol the merits of pro bono work this week, there are plenty of cash-strapped legal aid firms that spend much of their time providing free services without much choice which face going to the wall.

Ruth Brown, a solicitor at Essex firm Newman & Maxwell, recently saw her firm's quota of family cases to be funded by the Legal Services Commission for this coming year reduced by almost half, while client demand remained at the same level. “This means that those we cannot take on are dependent on the goodwill of voluntary organisations and firms undertaking pro bono work,” she argues. “As long as these people are willing to advise the public on this basis, the Government can cut legal aid provision and rely instead on the voluntary sector.” This is not a criticism of those who do pro bono work, she points out, but said that they may nevertheless be “unwittingly hastening the decline of what is left of the legal aid sector”.

Geoffrey Bindman, senior partner at Bindman & Partners, believes that the weakness of pro bono is its “detachment from the mainstream of public provision… which is not to deny the virtue of those who do it,” he adds. He calls for the practical participation of the whole profession in the funding of legal aid and believes it is time to revisit an old idea – a fund or a foundation to support access to justice which is financed by a levy on the profits of the more affluent firms. He does not object to City firms packing their bright young things off to law centres in far-flung parts of the capital, but nor does he think it is a terribly effective way of providing true access to justice. “It harks back to the old poor man's lawyer that I used to be in the early 1960s at a Citizens Advice Bureau on Monday evenings giving advice,” he says. “And that was all that I could be, because I couldn't handle a case.”

Unsurprisingly, the City firms strongly refute the notion that they regard pro bono as second-class work. “Back in the mists of time there were muffled carpings from the civil liberties lobby that the main reason why the City firms were gearing up to more pro bono work was that their kids could get flying hours spent making mistakes on

clients that didn't count,” recalls Michael Smyth, head of public policy and the partner in charge of pro bono at Clifford Chance. He believes that the commitment of firms such as his speaks for itself.

In 2002-03, Clifford Chance's London office spent more than 25,000 hours on pro bono, involving over 500 fee-earners managed by three full-time staff. He flags up his firm's support for one project in West London, Law for All, where it has four trainees on rotation at the not-for-profit legal aid practice, which costs the firm £100,000 a year.

Nor does Smyth believe that the current ministerial interest in pro bono belies a disingenuous way of plugging the gaps in a crumbling legal aid system. “I'm confident that the Attorney-General, who has a personal history in this area, is supported by a dedicated envoy, who is outstanding and has not only walked the walk but talked the talk in his career,” he says. “Frankly, if the committee is being looked after by Michael Napier, then that's good enough for me.”

One of the reasons behind the launch of the pro bono protocol is to ensure that the same professionalism is applied to non-remunerated work as it is to the work for commercial clients. The protocol sets out basic standards stating that pro bono legal work should only be undertaken by lawyers adequately trained for the purpose or adequately supervised. It adds that trainees should only do pro bono work under supervision and that pro bono work should not be done without the right insurance in place. Clifford Chance was the first firm to sign up, but so far few have followed. As Smyth points out, the protocol is “very straightforward and unobjectionable stuff”, but there have nevertheless been some rumblings from the City that even its rather basic obligations are “too prescriptive”.

Allen & Overy (A&O) reckons the amount of time devoted to pro bono has almost doubled from 15,000 hours to 28,000 hours over the last year. “It's been a very dramatic increase over the last two years,” says head of litigation David Mackie QC. “What we've been doing is seeking to include non-contentious lawyers, transactional lawyers and support staff. Up until two years ago much of the pro bono work was done by litigators.” A&O has yet to sign up to the protocol, but Mackie supports it and says there is nothing in it that is not already in the firm's pro bono policy.

Both A&O and Clifford Chance reckon that one of the greatest successes of the pro bono movement to date has been the SPBG's LawWorks for Community Groups. The project works along the lines of a dating agency, matching community groups to willing lawyers who are prepared to offer business law advice. So far 107 lawyers have helped more than 100 community groups within this first year of the scheme. There are 19 law firms involved, including eight US law firms as well as three in-house legal teams. Volunteers have given in the region of £300,000 worth of legal advice, with more than 548,000 people in total receiving assistance.

“It's done a great job in bringing together charities and commercial organisations that need not just legal advice but, for example, marketing and finance advice as well,” says Mackie.

Earlier in the year there were reports that the scheme was rapidly running out of cash. Since then it has received half-a-dozen donations of between £5,000 and £10,000 from firms on both sides of the Atlantic and now has enough money for the coming years. According to Black of the SPBG and BAE Systems Capital: “Increasingly, the value of the service has been recognised by small and medium-sized firms, as well as some other coordinators in the large firms, who all see it as establishing itself as a major channel for pro bono work,” he says.

If sheer altruism and good PR are not enough to prompt the interest of the City in pro bono, Black has also been busy making the business case. Increasingly, businesses are looking for a commitment from their external law firms as a demonstration of corporate social responsibility. BAE Systems Capital, for example, has spent more than £3m in legal fees on firms with pro bono schemes.

“If firms have a strong pro bono culture, it's quite likely that the lawyers in it are professional lawyers as opposed to people in the business of law,” says Black. “That's an important distinction in this post-Enron environment, where the quality of your professional advisers is key.”