The funding void and the currency of pro bono

Fitzpatrick: lawyers do so much more than the statistics suggest

Fitzpatrick: lawyers do so much more than the statistics suggest

Posted by Michael Fitzpatrick, Newcastle regional manager at Litigation Futures sponsor John M Hayes

The dictionary defines pro bono work as work ‘done or undertaken for the public good without any payment or compensation’ – in other words ‘free of charge’. Those three magical words are invariably subjugated by natural cynicism – ‘there’s no such thing as a free lunch’ and ‘you don’t get ‘owt for nowt’ spring to mind. Media-driven perceptions of the legal profession might engender similar sentiments.

But no. The legal profession is not just a collection of businesses, it is a public service collective which has justice at its heart, and it is certainly no stranger to working for nothing.

The Access to Justice Foundation

Section 194 of the Legal Services Act 2007 (which came into effect on 1 October 2008) formally recognises this. It subverts the indemnity principle and articulates the power of a court to make what is tantamount to an order for inter partes costs – an order made against the opponent of a litigant with no funding in place. The costs recovered are paid to the Access to Justice Foundation, a charity which provides much needed finance to law centres and other similar advisory services.

The foundation does, of course, receive money from other sources, including unclaimed client account balances from solicitors, legal support trusts’ fundraising events, and other generous donations from a plethora of individuals, associated legal institutions and enterprises, including the Law Society, the Bar Council and numerous legal publications

The essential pre-requisites and features of Section 194 are, in summary:

  • Made only by a civil court;
  • Recipient has legal representation, all or part of which was free of charge;
  • Can be made even if counsel was not acting free of charge;
  • Cannot be made against a party who was also represented pro bono or legally aided;
  • Cannot exceed what would have been determined by a conventional costs order;
  • Costs claimed must have been incurred after 1 October 2008;
  • VAT must not be claimed; and
  • Onus on winning litigant to apply for the order and to quantify the costs

Positive evidence

The Solicitors Journal reports that since 2008, the scheme has resulted in some 160 pro bono costs orders with a cumulative value of approximately £600,000.

Statistical evidence from the Trustlaw – Index of Pro Bono 2015 (part of the Thomson Reuters Foundation) reveals further positive evidence. A sample size of 8,043 fee-earners in England & Wales suggested an average of 21.9 hours of pro bono work each annually; the percentage who performed 10 hours or more amounted to 35.3%. Partner engagement also showed a consistent and positive trend in line with previous years, with 37.8% recording time on pro bono matters; and the number of pro bono hours performed by partners increased by almost 10% to 14.9 hours.

The recent attitude of government

We live in times of immense change and austerity, something that the last Lord Chancellor (Michael Gove) claimed to be acutely aware of. In his inaugural speech, he said: “The law is more than a marketplace, it is a community, the legal profession is more than a commercial enterprise, it is a vocation for those who believe in justice being done…

“Many of the most prestigious chambers at the Bar and many of the solicitors’ firms already contribute to pro bono work and invest in improving access to the profession… it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the living wage.”

Laudable though it is for a senior politician to extol the virtues of the legal profession, it is rather less commendable to engage in an almost subliminal shifting of responsibility. In the words of Andrew Caplen, the then president of the Law Society, in 2014: “Pro bono legal advice should never be seen as a substitute for a properly funded legal aid system. It is right to publicise the tremendous work that so many solicitors do free of charge.”

There speaks the voice of experience and reality, the incisive summation of an experienced lawyer, as opposed to the politically manoeuvring rhetoric of Mr Gove, a journalist by trade and a (then) Lord Chancellor by design.

The recent attitude of the legal profession

Perhaps there is more potential for pro bono work (on a formal basis at least) but it cannot be a panacea. Statistics suggest that much is being done, and my own experience of clients and friends in the legal profession suggest that they do so much more than the pure data reveals.

Lawyers typically spend a great deal of unpaid time dealing with their clients, providing practical advice, reassuring them, giving them a proverbial ‘shoulder to cry on’ and just being there for them – instances of pro bono work by every lawyer that go unrecorded.

As committed professionals, their remit is to deliver justice and a high-quality service; the overall framework within which this is achieved, however, is quite clearly the responsibility of government. Sadly an ever-burgeoning part of our society are being denied access to justice in the name of austerity.

In the words of Lord Falconer (shadow justice secretary): “Access to justice has been all but dismantled for the poorest in our society… The number of social welfare cases being granted funding has plummeted, victims of domestic violence are struggling to get help, employment fees are a significant barrier to workplace justice and the essential safeguard that is judicial review has been severely restricted.”

The Law Society, Bar Council and the Chartered Institute of Legal Executives have recently launched a working group to explore the feasibility of a contingent legal aid fund; this follows on from a speech by Sir Rupert Jackson earlier in the year. Conceptually this might involve the creation of a pooled fund of resources which would be capitalised and topped up by a contribution from damages in successful civil cases, in which the winning party is backed by that fund – a form of self-perpetuation.

An initial report is due by September and a final report before the end of the year. Whatever conclusions are reached, it is to be hoped that they are done so in a spirit of social realism and in a genuine effort to facilitate greater access to justice.

Concluding thoughts

Ultimately there is a funding shortfall when it comes to access to justice. The government (and lest it be thought that this is a party political attack, governments of all hues for some years) appears to be abrogating its responsibility to effectively ensure access to justice for all, one of the core principles of any democracy worth the name. It is greatly to the credit of so many lawyers that they are mitigating this effect, not because they are obliged to, but because they put the public good before their own.

The legal profession are clearly playing their part and now it is time for government to play theirs – and I can tell you that pro bono!

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