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Pro bono: More than a public good

James SandbachJames Sandbach, director of policy and external affairs at LawWorks, responds to Jon Black’s piece ‘What’s so good about pro bono’ published last week on legal Voice. Sandbach argues that pro bono is not a misnomer or a gimmicky PR stunt, but something the professions should celebrate and promote.

Jon is spot on to say that ‘Pro bono work cannot be a sticking plaster to cover the void left by the legal aid cuts,’ but he suggests that the sticking plaster solution is fast becoming the direction of travel – both for the professional bodies and government policy – to be ‘polyfiller for the justice gap’.

He also asserts that pro bono (‘public good’) should now really be renamed ‘public relations’ as it is not in the ‘public good’ that those denied legal aid should have to rely on pro bono.

Jon makes a powerful argument but also a contestable one, which risks setting up a stale legal aid versus pro bono narrative, when the reality is that that both make important contributions to access to justice.

Jon goes on to argue for a levy on City firms to fund legal aid as an alternative to pro bono, but does not explore the issues and difficulties around this idea.

But, the main problem with the article is that he seems to miss – and in places mischaracterise – some of the fundamentals about how pro bono works in today’s legal services landscape.

Firstly, it misses the diversity of pro bono provision and activity. Pro bono has never been limited to those areas of law where government has been tightening the public funding purse strings. Take for example the LawWorks Not for Profits programme, which brokers legal advice for small not-for-profit organisations on a wide range of legal issues, whether drafting a contract, reviewing a lease or updating a constitution/articles.

Secondly, pro bono plays an important role in clinical legal education, exposing law students to valuable practical legal work before they are fully qualified into practice. There are more than 220 independent pro bono clinics in the LawWorks network. More than half of the volunteers are students and a third of the clinics operate with law schools.

Thirdly, pro bono transfers skills, gets lawyers out into the community, and brings people together, including through community fundraising and public legal education work.

At LawWorks we have been developing a policy voice for pro bono, one strand of which is to emphasise the contribution of pro bono within the context of advocating and promoting access to justice, and the vital role of legal aid and funding for law centres and advice agencies which provide infrastructure for pro bono projects.

As Jon says, the access to justice gap is growing, but the idea of an inherent conflict between pro bono and legal aid is profoundly wrong.

His ‘solution’ echoes the idea floated by Michael Gove, when he was justice secretary, of a levy on City firms. It is an interesting idea and not entirely without precedent — the Financial Services Authority operate a statutory levy on financial services businesses, which supports the Money Advice Service (delivered through Citizens Advice and other money advice agencies).

However the logic of that policy was the ‘polluter pays’ principle – it was introduced as an alternative to state funding on the basis that the 2008 crash and all that flowed from it, significantly contributed to the rising need for money and debt advice.

The same cannot be said for the legal profession. There is no such causal relationship with unmet legal need. If we are looking for a ‘polluter pays’ principle for demand in the areas of social welfare law then a better candidate for a levy might be the DWP and other public bodies whose failure to get decisions right drives appeals and judicial reviews.

There could also be other practical problems with the operation of a legal aid levy, like how the costs might get passed onto the profession. More fundamentally, if Jon’s argument around pro bono is that government should not be shifting the burden of supporting access to justice from the state to the profession, then the same argument and objection applies to levying the profession — a levy might erode not just existing pro bono, but also corporate social responsibility (CSR) contributions.

There is a wider debate about pro bono and the value of volunteering in and of itself. The profession has been rightly resistant to the notion that pro bono should be compulsory or compelled, for example, through regulatory or practice requirements precisely because pro bono is by definition voluntary.

It’s a well-worn mantra that pro bono is ‘part of being a lawyer’, but that is connected to ethos, values, and professionals giving back to the community on the basis of goodwill and social citizenship – not as Jon suggests as a ‘public relations’ gimmick.

There has of course been an ongoing discussion in the legal community about how to incentivise pro bono – for example with target hours, pro bono charters and protocols, benchmarking against CSR policies and professional development, but generally the consensus has come out against a strict compulsion approach.

So voluntarism, community engagement and social value are at the heart of pro bono and it is sad to see this characterised as ‘public relations’. Our refrain to Jon’s piece is that pro bono is not a misnomer – it is something to be proud of in our legal profession, and the professions should not be shy in celebrating and promoting this contribution.

James Sandbach is the director of policy and external affairs at LawWorks. He has significant experience of the legal and advice sectors as has done work for the Low Commission and provided the secretariat for the All Party Parliamentary Groups on Pro Bono, Public Legal Education and Legal Aid. Prior to that he spent 10 years as legal affairs policy officer at Citizens Advice

 

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