Post on 03-Apr-2018
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SOMETHINGFORNOTHING?The Provision of Legal Services
Pro Bono Publico
ANDREW BOON & AVIS WHYTE
pro bono publico Latin. (prbnpbl1k)
for the public good. (Collins English Dictionary)
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ACKNOWLEDGEMENTS
We are grateful to the Nuffield Foundation for grants
to conduct and publish the research on which this
report is based and particularly to Sharon
Witherspoon, Deputy Director, for her encouragement
and assistance.We are also grateful to Peta Sweet,
former Director of the Solicitors Pro Bono Group, for
her support for this project.And we thank the
solicitors, barristers, representatives of the
professions, volunteers and others who generously
gave their time to help with this project.
THE NUFFIELD FOUNDATION
The Nuffield Foundation is a charitable trust
established by Lord Nuffield. Its widest charitable
object is the advancement of social well-being.The
foundation has long had an interest in socio-legal
issues and has a special programme of grant-making
in Access to Justice. The Foundation has supported
this project to stimulate public discussion and policy
development.The views expressed are those of the
authors and not necessarily those of the Foundation.
FOR FURTHER
INFORMATION CONTACT
University of Westminster, School of Law,
4 Little Titchfield Street, London W1W 7UW
Tel: 020 7911 5000 Fax: 020 7911 5821E-mail:A.Boon@wmin.ac.uk or Whytea@wmin.ac.uk
Internet: http://www.wmin.ac.uk
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1KEY POINTS
Pro bono publico has a strong tradition in law.
Recently there has been a sustained resurgence of
interest and increased pressure on lawyers to
performpro bono work.The reasons for this seemto be a complex interaction between professional
idealism,political pressure and commercialism.
These pressures appear to be global and
particularly strong in common law countries.
The traditional concept of lawyerspro bono
publico the provision of litigation and advocacy
services to poor individuals, free and without
expectation of payment does not fit
contemporary conditions especially well. Reasonsfor this include the increase in the volume of non-
contentious work and the availability of new
funding mechanisms for litigation, particularly
conditional fee arrangements and speculative
fee arrangements.
Available research is patchy and contradictory. It is
difficult to define and measurepro bono publico.
While there are many reasons for adopting a
universal definition ofpro bono publico, three are
important:
(1) the absence of a definition commanding
common consent hampers research
(2) the absence of reliable data inhibits sound
policy making and casts doubt on legal
professions claims that their members
perform substantial amounts of workpro
bono publico; this undermines confidence in
the profession
(3) the absence of definition also creates the risk
of disputes between sections of the
profession.
The profession should definepro bono publico,
preferably in its code of conduct, without setting
targets of donated time.
The definition ofpro bono publico should embrace:
(1) traditional advice and representation
provided that advice is given with acommitment to pursuing appropriate cases
(2) transaction work provided it is for
organisations representing socially
disadvantaged groups and
(3) community schemes involving non-legal
personnel provided their contributions are
ancillary to the provision of legal services and
integral to the scheme.A system for accreditingpro bono work in these
categories would be an advantage.
It is proposed that the definition should only
embrace speculative fee agreements where there
is a commitment by the lawyer from the outset to
contribute any fees recovered to apro bono fund.
Incentives for the provision of legal servicespro
bono publico include:
(1) recognition and promotion of the value and
intrinsic rewards ofpro bono publico and
(2) the provision of inducements.
Productive strategies for promotingpro bono
publico are likely to include investment in
undergraduate and vocational stagepro bono
publico.While this may help to establish patterns
and expectations of participation in legal practice,
it remains likely thatpro bono publico will needsupport from strong organisational commitment.
This should include programmes offered by the
professional bodies, law firms and chambers, as
well as by the successful Solicitors Pro Bono
Group and the Bar Pro Bono Unit.Awards that
valuepro bono publico are an important
mechanism for encouraging these activities.
A vibrant culture ofpro bono publico throughout
the profession is a way of inculcating an ethos of
public service, improving the public image of
lawyers and establishing collegial relations
between different sections of the profession. In
support of these aims the professional bodies
should consider an active engagement with the
emerging culture including regulation, support and
sponsorship.
Pro bono publico can be seen as both a public
service and an activity performed for the benefit of
the profession.An effort should be made to shiftattention from the quantity of voluntary legal
services to the quality ofpro bono publico.
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THE RESEARCH
AIMS OF THE STUDY
There is a wealth of academic material relating
topro bono publico in the USA6 but relatively
little in the UK.7 The research aimed to
investigate the work performed by lawyerspro
bono publico. It sought to identify relevant
policy issues, to assist in reaching a definition of
pro bono publico relevant to contemporary
conditions and to consider what incentives
might increase the provision ofpro bono publico
by lawyers.
METHODOLOGY
The research was conducted in three
overlapping stages:
STAGE ONE
A literature review encompassing the collection of
a wide range of documentary sources, including
policies, materials, handbooks and so on.
STAGE TWO
Interviews with thirteen practitioners based on a
structured diary8 kept by them over a two weekperiod.The aim was to provide detailed first
hand information about patterns of voluntary
andpro bono activity.
STAGE THREE
Eighteen in-depth interviews with: six key
lawyers; four policy makers; three professionals
(each involved in legalpro bono work), four
representatives of the voluntary sector and a
recipient ofpro bono legal services.
Transcripts of interviews from stages two and
three were analysed, sorted according to themes
and congruence and divergence noted.9
The research was qualitative and relied on a
small sample relative to the size of the
profession as a whole.We sought to developgrounded theory10 in order to better understand
key issues. We have exercised caution in
generalising from the data presented.
INTRODUCTION
The termpro bono publico is connected with work performed free for the poor and indigent by high
status professions.1 In the twelfth century,Christian clergy had responsibility for providing legal
counsel to widows, orphans and those who lacked resources of their own.2 Population growth,
urbanisation and the increasing volume and complexity of law created conditions for the birth of alegal profession that assumed these clerical obligations as civil courts replaced ecclesiastical
jurisdictions.
Over timepro bono publico fell into decline, a process apparently cemented by the inception
of legal aid. In the 1970s a resurgence occurred, connected to the emergence of Law Centres and the
adoption by some Citizens Advice Bureaux of a more overtly legal orientation.
In the early 1990s there was another resurgence inpro bono publico, mainly in large firms. Pressure
was brought to bear by politicians, particularly Labour politicians in opposition3 and by business clients
and in-house legal departments.4 This provided more fertile ground for the development of a culture of
pro bono publico, already found in small pockets in large firms, but mainly centred on death penaltywork in the Judicial Committee of the Privy Council.
This resurgence continues unabated. Calls for lawyers to provide servicespro bono publico are now
part of a world-wide pattern,particularly in common law countries.5
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Table 1 organises the diary keepers into four
groups and indicates the participants field of
work and the type of firm for which they work.
In column three each participant is given a
code and this will be included when an extract
from their interview transcript is cited.
Table 2 indicates the type of organisation in
which stage three participants were involved,
location and a code that enables tracking
through citations from their transcripts.They
have again been grouped, with the number of
the first group (five) running on consecutively
from the last group of diary keepers.
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3TABLE 1: PROFILE OF DIARY KEEPERS FOR STAGE TWO
TABLE 2: PROFILE OF INTERVIEWEES FOR STAGE THREE
Group Status Code Type of Organisation Location
Five Lawyer L1 LA Legal Aid London
L2 LA Legal Aid London
L3 HS High Street Devon
L4 C Commercial London
L5 C Commercial London
Six Policy Makers PM1 Law Society London
PM2 Government London
PM3 Government London
PM4 Bar Council London
Seven Voluntary Sector VS1 Advice Agencies London
VS2 Campaigning London
VS3 Citizens Advice Bureau London
VS4 Campaigning London
VS5 Recipient London
Eight Professionals P1 Campaigning London
P2 Professional Body London
P3 Campaigning London
Group Status Code Years Field Type of Firm Location Diary Periodof Experience of Work 1999
One Trainees DK T1 C 0.4 Litigation Commercial (Banking) London 15/03-26/03
DK T2 C 1.4 Mergers Commercial London 15/03-26/03
(Banking & Capital Markets)
DK T3 C 1.6 Employment Commercial London 22/03-02/04
(Mergers,Acquisitions & Bonds)
Two Assistants DK A1 C 8 Litigation Commercial (Banking) London 08/03-19/03
DK A2 C 2 Trusts Commercial London 14/06-25/06
(Mergers,Acquisitions & Bonds)
DK A3 C 2.6 Health Commercial (Pensions) London 08/03-22/03
DK A4 C 1.6 Litigation Commercial London 15/03-26/03
(Mergers,Acquisitions & Bonds)
DK A5 C 6 Litigation Commercial London 15/03-26/03
(Banking & Capital Markets)
DK A6 C 25 Employment Commercial London 15/03-26/03
(Banking & Capital Markets)
Three Partners DK Pr1 LA 15 Personal Injury Legal Aid Suffolk 08/03-19/03
DK Pr2 HS 20 Personal Injury High Street London 08/03-19/03
Four Barrister DK B 10 Commercial Common Law Set Newcastle 14/06-25/06
(PI, Professional negligence, commercial)
Volunteer DK V VS 2 General Law Centre London 17/03-22/04
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THE FINDINGS
THE RESURGENCE
OF INTEREST
IN PRO BONO PUBLICO
Our research identified a number of factors
that appear relevant to the marked rise in
the profile ofpro bono publico in recent
years, including idealism, professionalism,
commercialism and globalisation.11
IDEALISM
This and other research suggests thattrainees and senior lawyers share a
propensity for professional altruism.Young
lawyers are motivated by potential for
personal development and a commitment to
the community.12 Many young lawyers also
participate because they are instructed to do
so by their firm.
In contrast, senior members of the profession
are less likely to volunteer. They may do so
because of a perceived ethical obligationand because the cases they receive add
variety to their work or simply because they
are invited to do so.
The involvement of senior lawyers from
large firms in death penalty appeals and
work for Liberty, appears to have resulted
from invitations to join the panels of these
organisations. The presence of such
organisations in the milieu, together with
their pro-activity, is an important feature of
the development of a culture of volunteering
and a powerful stimulus for lawyer
participation.
PROFESSIONALISM
Professional communities might be expected
to engage inpro bono publico because it isan obligation supported by history, tradition
and ethics. However, the efforts of the
government to stimulate a commitment by
the professional bodies appeared
ineffective.13 Neither the Bar nor the Law
Society take direct responsibility forpro bono
publico, although both periodically cite the
volume ofpro bono services provided.14
COMMERCIALISM
Commercial motives undermine the altruism
and hence the ethicality assumed to
underpinpro bono publico. Practitioner
participants in our research were suspicious
of the claims of other sectors of the
profession. Commercial lawyers and policy
makers thought that high street firms used
pro bono work at advise agencies togenerate paid work. High street and legal aid
firms were concerned about the marketing of
pro bono publico by large firms.
[Pro bono is not] lots of people sitting in
front of their logos saying how many guys
theyve saved from Death Row...With the
greatest of respect, whilst I am not a
supporter of the death penalty, how it helps
Joe Bloggs is lost on me. Its the nitty gritty
boring stuff which is the problem inpro
bono, all that stuff for glory doesnt count
(L3 HS)
It is unrealistic to suggest that all commercial
motives can be erased.15 Nevertheless, it is
distasteful and counter productive thatpro
bono be used too overtly to sell legal
services.We advocate controlling
commercialism by regulation. Pro bono
publico should be seen to be performed forthe benefit of the profession and controlled
[Pro bono is not] lots of
people sitting in front of their logos
saying how many guys theyve saved
from Death Row...
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through professional advertising codes.
This would be facilitated by the professional
bodies accepting some responsibility for
accrediting and monitoringpro bono
schemes, most conveniently through the
BPBU and, for the Law Society, througheither large firm programmes or local Law
Societies in the regions.
We argue that participation should not be
mandatory because this is likely to provoke
resistance. An effort should be made to
shift attention from the quantity of
voluntary legal services to the quality of
pro bono publico.
GLOBALISATION
There is considerable interest in the United
States,Australia, Canada and New Zealand
relating topro bono publico. And Bar
Associations have debated and in some
cases enacted pertinent resolutions and
regulations.
Among the most powerful global influences
is the American Bar Association which has
had several campaigns on the issue,
promulgated a Model Rule, urged clinical
programmes on affiliated colleges and
launched a pro bono challenge aimed at
large firms. This activity, relayed through the
advocacy networks, reinforces values
transmitted through contacts between
transnational firms, through business clients
and through individuals awareness of
developments in the United States.
In the UK a powerful influence has been
Business in the Community which has been
instrumental in extending a charitable
business ethic from the US to the UK
including, through the Professional Firms
Group, to the legal profession.The arrival of
a large number of US law firms in London,
was attended by much publicity about theirintentions regardingpro bono work.16
KINDS AND VOLUMESOF PRO BONO PUBLICO
The research diary method illustrated how
difficult it is to gain a consistent and
universal idea of howpro bono publicomight be defined and measured.Taking
group two as an example, different
participants treatedpro bono work as both
private billable work for which no fee was
charged and as unbillable work.Given these
basic discrepancies it is not surprising that
there is considerable uncertainty about the
volumes ofpro bono work performed. 17
The most consistent definitions ofpro bonopublico are adopted by large solicitors firms
and by the Bar. In the case of large firms
this, we believe, is because they are directly
influenced by the SPBG, which restrictspro
bono publico to legal services only.18 The Bar
Pro bono Unit (BPBU) and the Free
Representation Unit (FRU) tend to provide
advisory and advocacy services connected
with potential litigation.19 The nature of this
activity is therefore close to traditional
conceptions ofpro bono publico.
Based on this and previous research20 we
conclude that a significant contribution to
large firmpro bono publico comprises
advice sessions in the not for profit sector
which are staffed mainly by trainees and
associate solicitors. More senior staff
provide significant volumes of work for the
London or Liberty panels, or for the Royal
Courts of Justice Advice Bureau scheme to
assist litigants in person.
There is little evidence as to the volume of
ad hoccases performed by solicitors
although there is data from the BPBU.
Transaction work is also provided for groups
such as the East London Partnership or the
Professional Firms Group.
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A number of categories of funding were
mentioned by participants, which may or may
not be consideredpro bono publico.These
are now considered in types:
CONDITIONAL FEE
AGREEMENTS
Even in cases where lawyers run higher than
usual risks of not being paid, the presence of
a commercial context the possibility of
being paid extra if the case is successful is
compensation for the risk of working for free.
The difficulty of separating commercial andnon-commercial motives in such cases
suggests that no case in which a CFA exists
should be seen as apro bono case.
Most lawyers accept this, as one participant
in this study noted.
...there has got to be a difference between
someone who takes a conditional fee basis
as a commercial bet and someone who does
it as a generous action.How on earth do youdistinguish between those motives when it
comes to analysing, I dont know.
The classical idea of what I understand aspro
bono must involve that element of intention
(PM 4)
DISCOUNTED FEE
Work for substantially reduced fees or at
significantly reduced cost is accepted as
pro bono publico by the SPBG and the ABA
and was included in the Law Society
Working Partys definition of the term.
However, we find discounted fees an
unsatisfactory example ofpro bono
publico. Not only do normal fees differ
hugely between firms, between staff within
firms, and even between court scales in
different parts of the country, but charging
a discounted fee is usually a commercialdecision by a firm. One lawyer clearly
recognised this:
Weve got a large stake in the area and we
reckon to get a slice of everything thats
going.We do a legal surgery but that is not
pro bono because 50% converts to paid
work and it is publicity [and the 50% that
doesnt lead to paying clients is] a lossleader, notpro bono (L3 HS)
DISBURSEMENTS
There are grounds, however, for allowing
lawyers to take disbursements reasonably
incurred in pursuing casespro bono publico.
The main reason for this qualification is that
pro bono publico is the provision of legalservices, i.e., technical lawyering skills, not
an indemnity in respect of all apro bono
clients legal expenses.
SPECULATIVE FEES
Non-CFA speculative fees are a more difficult
case since, unlike conditional fees which
include an uplift where the lawyer is
successful lawyers are uncompensatedunder such arrangements for the litigation
risk they accept. The same intention that
underpinspro bono publico may be present.
Moreover, not seeking costs, or not enforcing
a costs order against the losing opponent,
merely hands that party a windfall.
Nevertheless, it is worth considering the
exclusion of non-CFA speculative fees from
the definition ofpro bono publico so as to
maintain the purity of the concept.
An alternative to exclusion would be to
create apro bono fund to receive costs
recovered from losing parties in cases that
lawyers agree to conductpro bono, but in
which the fees are recoverable. Lawyers
might then preserve, by means of an initial
agreement with the fund, thepro bono
status of their representation.
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New funding mechanisms, particularly
CFAs and speculative fees are at odds with
the traditional concept of lawyerspro bono
publico provision of litigation and
advocacy services to the poor, free and
without expectation of payment. As onepolicy maker commented the whole
change in the cost structure has an impact
on [pro bono] (P3)
If conditional fees become pervasive there
may be a declining need forpro bono publico
in relation to more serious cases.This would
further undermine the dominance of the
litigation model ofpro bono publico.
DEFINITION21
Another problem with the litigation model
ofpro bono publico is that it does not fit
contemporary conditions particularly well.
For instance,non-contentious work, and
particularly transaction law, is of a
significantly higher volume than once was the
case.The relative absence of suitablecontentious work is an impediment to large
firm involvement.22
Because the historical origins ofpro bono
publico predate the growth of transaction
law, it has been associated with litigation and
advocacy and hence access to justice. This
association, however, also reflects the
contemporary view, expressed most clearly in
the work of David Luban,23 that holding a
monopoly on services essential to the public
good imposes on a legal profession
corresponding obligations to the state to
provide access to justice. There is therefore an
issue as to whether folk understandings of
pro bono publico should be reinforced,
changed as an act of policy or superceded by
common usage.
Despite considerable difficulty in defining
pro bono publico, the Law Societyrepeatedly declines to take action on the
ground that individual solicitors perform
high volumes of such work.The Law Societys
Reputation Working Party recently claimed that
solicitors performed an average of 37 hours
eachperyear.24
In most High Street and legal aid firms the
boundaries between ordinary and free workare muddy.We found solicitors definitions of
pro bono publico tended to be fluid, including
free advice to existing clients, friends or
relatives and work, for a variety of reasons, not
charged for. In large firms, definitions are
typically more distinct and pure.
I divide it intopro bono and community
affairs,pro bono to us means legal advice and
assistance for free. But we also recognise thevalue of non-legal volunteering and our
lawyers are involved in that, but that is non-
legal volunteering and notpro bono (L4 C)
There are a variety of reasons for adopting a
definition ofpro bono publico but three are
particularly important.
First, the absence of a definition commanding
common consent hampers research and the
absence of reliable data inhibits sound policymaking.
Second, legal professions often assert that
their members perform substantial amounts
of workpro bono publico. Doubts as to the
validity and reliability of the data used to
support such claims undermine faith in their
veracity and, consequently, confidence in the
legal profession.
Third, suspicion about claims to performpro
bono work between different groups with the
profession, may exacerbate tensions and
misconceptions.
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The classical idea of
what I understand as pro bono
must involve that element of
intention.
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Given the developments recorded in this
report it is desirable that there are changes
to the traditional concept ofpro bono
publico. There is also a need to clarify this
new meaning, in particular by excluding
examples of work that undermine the
integrity of the term. Similarly, however, thedefinition must not exclude some innovative
examples of community action.
For instance, schemes that combine the use
of legal and non-legal resources, including
community resources, in order to promote
social cohesion, appear to meet the highest
ethical aim for professionals; to help the
disempowered help themselves. It is
proposed, therefore, that the definition ofpro bono publico should embrace:
(1) traditional advice and representation
provided that advice is given with a
commitment to pursuing appropriate
cases
(2) transaction work provided it is for
organisations representing socially
disadvantaged groups and
(3) community schemes involving non-legal
personnel provided their contributions
are ancillary to the provision of legal
services and integral to the scheme.
It is also proposed that definition should
embrace speculative fee agreements where
there is a commitment by the lawyer from the
outset to contribute any fees recovered to a
pro bono fund.Contributions to such a fund, in
the absence of a prior contribution of legal
services, should be encouraged but not
regarded as a discharge of the obligation to
provide legal servicespro bono publico.
Further, it is proposed that the new definition
be presented as an ethical obligation of
lawyers, in the codes of conduct of all
professional bodies,albeit expressed in
aspirational terms.
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A PRINCIPLE OF
CONDUCT
Lawyers subscribe to an ethic of public
service.One of the highestmanifestations of this commitment is the
obligation to provide their servicespro
bono publico.The provision ofpro bono
legal services benefits the individual, the
profession and wider society. Legal
services providedpro bono publico are:
(I) Advice, litigation and advocacy
services provided by lawyers, or their
properly supervised staff, toindividuals:
who are not existing clients,
acquaintances or relatives and
to whom the cost of those
services would impose unusual
hardship, or
who would suffer ordinary
hardship but whose case will, if
successful, establish a legal
principle beneficial to adisadvantaged section of
society
provided that the lawyer has waived a
right to any fee and provided that, in
the case of the provision of advice
services, a lawyer has a commitment
to pursuing appropriate cases without
charge.
(II) Other legal services provided by
lawyers, or their properly supervised
staff, to organisations the aim of
which organisations is to improve the
circumstances of disadvantaged
sections of the community
(III) Legal and other services provided by
lawyers, or their properly supervised
staff, as part of a scheme to improve
the environmental, economic andsocial conditions of a community.
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INCENTIVES
Incentives for the provision of legal services
pro bono publico are of two kinds:
first recognition and promotion of the value
and intrinsic rewards ofpro bono publicoand, second, the provision of inducements.
These possibilities overlap. One of the
advantages of a principle of conduct relating
topro bono publico is that it would
communicate expectations and allay the
current impression that the profession has
low expectations of genuinepro bono work.
A new principle of conduct could besupported by increased educational
requirements forpro bono publico,for
example, by broadening the commitment to
clinical legal education in undergraduate
degrees. Some such activity is already
underway and is supported by a formal
relationship between the SPBG and CLEO
(Clinical Legal Education Organisation).
The College of Law aspires to provide
leadership in establishing a comprehensivenetwork of student advice centres.25
Similarly, allowing continuing professional
development points forpro bono publico
would encourage recently qualified lawyers,
and perhaps even more senior colleagues, to
participate.26
One of the most important incentives is a
sense of organisational commitment. This is
encouraging, particularly to younger lawyers.
[W]hen you start in the litigation department
you are given a talk onpro bono work and
the firm holds it in high regard and I do
know that cases are taken up and trainees
are allowed to work on some of those cases
which is quite interesting.
AB [partner in charge ofpro bono] made it
quite clear that if you werent committed to
it, that wasnt a good thing at all which is
amazing coming from a man like that whohas achieved so much, there are so many
amazing people who work here, its like
working in a premier league which may
sound like brainwashing but it is like that!
[T]heyre showing a strong commitment
topro bono and when you see a senior
person like [AB] getting involved it makes
you think they really do mean it in their talksetc. Its someone whos practicing what they
preach (DK T1 C)
Committed firms allow lawyers to see the
occasional large case through, do not
restrictively apply conflict of interest rules
and give credible assurances that future
prospects will not be hampered bypro
bono practice. Such firms treatpro bono
publico as a valuable opportunity forprofessional development, and an ordinary
part of routine, in which most firm
members, at least occasionally, participate.
Recognition within social structures,
allowing full credit forpro bono hours
against standard billable hours and the
provision of adequate support and
supervision are measures that also support
and encourage involvement.
Combining elements of these possibilities islikely to be the most productive strategy in
promotingpro bono publico.A strong
investment in undergraduate and vocational
stagepro bono publico, followed by strong
commitments and programmes offered by
the professional bodies, and firms and
chambers,would create a climate of
expectation and encouragement.
The success of projects that contribute
significant community gains may lend
considerably to enhancing the intrinsic
rewards of legal practice. Awards that
valuepro bono publico, such as that
offered by The Lawyerand another recently
launched by the Young Solicitors Group,
are an important mechanism for adding
legitimacy to these activities.
its important that firms should shout
about theirpro bono work to tell theoutside world what it is they are doing and
to encourage others to follow suit (L5 C)S
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IMPLICATIONS FORPROFESSIONALISM
The creation of a vibrant culture ofpro bono
publico throughout the profession is a way
of inculcating an ethos of public service,improving the public image of lawyers and
providing a vehicle for collegial relations
between different sections of the profession.
The considerable doubt about what role, if
any, volunteer lawyers will play in the
Community Legal Service (CLS) leaves a
question mark over the potential for
integration of advice sessions, clinical
learning and similar activity and the CLS.Speaking about this integration a
parliamentary backbencher close to the
governments thinking said:
I dont see any necessary connection with
Community Legal Service for this reason; the
CLS is about quality assured legal services,
the main problem withpro bono is quality
assurance because when people are doing
pro bono work they arent necessarily
applying the rigorous standards that theywould apply if they were being paid for it,
that is the major problem.
So, the CLS is not aboutpro bono, they are
completely different, there is virtually no
connection between them at all. Pro bonos
voluntary, the CLS is about contracts,pro
bono is for nothing,CLS is about the
government getting better value for the
money that is invested in buying legal
services...
I am delighted that lawyers take onpro
bono cases, I strongly encourage them to do
so, but we cant fashion legal services for
the poor out the scraps from the rich mans
table (PM 3)
We argue that the government would be
wrong to reject the possibility thatpro bono
publico could contribute to the delivery ofthe CLS or otherwise make significant
contribution to the development of legal
services. The structure of the CLS could
provide a convenient framework for the
efforts of high street and legal aid firms.
It would allow them to meet the stringent
conditions of the proposed definition and
provide a single point for negotiation ofcommitments and standards with regional
profession groupings.
The CLS consultation document refers to
discussions with the Solicitors Pro Bono
Group regarding this role. This, together with
much else regarding the regulation of the
emergingpro bono culture, is properly a
matter for the profession as a whole and,
hence, the professional bodies.
Many of the uncertainties and difficulties
described in this report might be resolved by
a more pro-active response to the issue by
the professional bodies, particularly the Law
Society.This would:
assist in reaching an agreed definition of
pro bono publico.
enable the creation of a regionalstructure and mechanisms for
accreditation, filtering, monitoring and
evaluation,
send encouraging signals to the many
lawyers who are involved in individual or
firm initiatives,
allow the establishment of frameworks
which encourage collaboration between
barristers and solicitors and between
different sections within each branch of
the legal profession and therefore,
help to build bridges between these
groupings and encourage collegiality
amongst lawyers in general.
Such frameworks might also assist in
identifying community projects with legal
components that might enablecontributions from non-qualified
employees of firms.
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CONCLUSIONS ANDRECOMMENDATIONS
(1) Despite the lack of any clear consensus,
and to some extent because of it, a cleardefinition ofpro bono publico is essential.
There is a desire among sections of the
legal profession to contribute to society
and there will continue to be a variety of
unmet legal needs.
The task is to definepro bono publico in a
way that recognises changes in the
environment of the legal services market,
whilst retaining links with the traditionsof lawyers and commanding consensus.
This last objective is important because of
the potential for intra-professional conflict
around this issue.
(2) We advocate a tight definition ofpro
bono publico and the exclusion of
dubious categories from this definition.
Without this there is potential for conflict
between the various conceptions ofpro
bono.Also conclusions regarding volumesof work based on self-reporting are
unreliable.
(3) Offering conditional or discounted fees,
while doubtless valuable to clients, are,
typically, commercial decisions. In
advocating the exclusion of these funding
mechanisms from the definition ofpro
bono publico, we have argued for quite
stringent conditions before work is
regarded aspro bono.
However, maintaining such a pure
concept ofpro bono publico would not
necessarily undermine its relevance.There
may be cases which slip though cracks in
the new funding regime, wherepro bono
publico is the only viable alternative for
pursuing important rights.There may be
some cases where the risk is so high that
insurance (usually available to cover therisk that the party with a CFA might be
required to cover the other partys costs)
is not available.As in the recent tobacco
litigation, lawyers may take the case in
a spirit of public service.
(4) There is a delicate balance to be kept
between ethical and commercial motives.We suggest it is the responsibility of the
professional bodies to safeguard this
balance to ensure thatpro bono is used to
promote the profession as a whole.
Professional bodies should also accept
some responsibility for accrediting and
monitoringpro bono schemes, although
this might be done through the BPBU
and, for the Law Society, through the
SPBG, large firm programmes or localLaw Societies in the regions.
(5) Lawyers in England and Wales should
commit themselves to a definition ofpro
bono publico and publish a suitably
aspirational principle in their professional
ethical guidance.Without this, confusion
will continue to reign and an opportunity
for ethical regeneration missed.
(6) The tradition ofpro bono publico is amechanism for elevating legal
professionalism,maintaining public service
commitments and, potentially, for
socialising lawyers. It is proposed that the
profession should seize the opportunity
presented by the resurgence ofpro bono
publico to rebuild the connection between
legal professionalism and public service.
This will require a more active
engagement with the emerging culture
that will include regulation, support and
sponsorship.
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Despite the lack of anyclear consensus, and to some
extent because of it, a clear
definition of pro bono publico
is essential.
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1 Brundage,J. (1988) Legal Aid for the Poor and the
Professionalisation of Law in the Middle Ages 9Journal of
Legal History169
2
Ibid. at 1693 McLeod, J. (1994) Justice Agenda 91(11) Gazette 16th March
at 12;Ames, J. (1995) Labour Creates Vision for the Future
92(08) Gazette 22nd February at 1, 68; Bindman, D. (1996) Pro
Bono Wrangle 93(46) Gazette 13th December at 6
4 Pye, S. & Laferla,A. (1998) BAe Threatens Unethical Firms,
The Lawyer8th March at 1
5 See for example, Law Society Alberta (1995) Law Society of
Alberta code of Professional ConductLaw Society of Alberta:
Calgary and Law Society New South Wales (1998)Access to
Justice: Final ReportLaw Society: New South Wales.
6See, for example, Luban, D. (1988) Lawyers and Justice: an
Ethical StudyPrinceton University Press: Princeton, NJ and
Oxford; Katzmann, R.A. (1995) The Law Firm and the Public
GoodThe Brookings Institute:Washington; Silverman, R. (1990)
Conceiving a Lawyers Legal Duty to the Poor 19 Hofstra Law
Review885
7 See, for example,Abbey, R. & Boon,A. (1995) The provision of
voluntary legal services by solicitors: a review of the report of
the Law Societys Pro Bono Working Party 2 International
Journal of the Legal Profession 261;Boon,A. & Abbey,R. (1997)
Moral Agendas?: Pro Bono Publico in Large Law Firms in the
United KingdomModern Law Review630 and Webley, L.
(1999) Trainee Solicitors Group/Young Solicitors Group Pro
bono SurveyInstitute of Advanced Legal Studies: London.
8 Zimmerman,D.H. & Wieder, L.D. (1977) The Diary 5 Urban
Life 479; Bell, J (1993) Doing Your Research Project(2nd.
edition) OUP: Buckingham;Corti, L. (1993) Using Diaries in
Social Research 2Social Research Update 1
9 Miles,M. B.& Huberman,A. M. (1994) Qualitative Data
Analysis: An Expanded Sourcebook Sage:Thousand Oaks and
London
10 Lincoln,Y. & Guba,E. (1985) Naturalistic EnquirySage
Publications:London
11 For a more detailed exposition of this analysis see Boon, A.
and Whyte,A. (1999) Charity and Beating Begins andHome: The Aetiology of the New Culture of Pro Bono Publico
2:2 Legal Ethics 169.
12 Ibid.
13 See for example,The Lawyer (1996) Boateng in Threat to
Impose Pro bono Rules, The Lawyer10th December 1.
14 See, for example, Cahalane,B. (2000) Law Society Reputation
Working Party Report: Leading the Profession into Pro Bono
Law Society: London 15th September.
15 Peter Mandelson, when working for Voluntary Services
Overseas,said of employer supported volunteering:The benefit
is not only to employee and shareholder relations but also to
companies consumer profile.Two-thirds of consumers consider
the ethical stance of a company when considering a purchase
and initiatives such as VSOs offer a practical, cost-effective and
very public way to deliver socially responsible brand values,see
Hill,N. (1998) Market EthicsThe Guardian (Society
Supplement) 19th May at 85.
16 See, for example, Hardwick,C. (2001) SPBG Signs up US Pro
Bono Trio, Legal Week 31 May,The Lawyer (2001) US Firms in
London Set to Launch Joint Initiative on Pro Bono Work,The
Lawyer 12 February.
17 Boon,A. and Abbey, R. (1997) supra n.7, Flintoff,J-P. (1995)
Pro bono or Promotion? Legal Business January/February 44,
Webley,L. (1999) Trainee Solicitors Group/Young Solicitors
Group Pro bono SurveyInstitute of Advanced Legal Studies:
London and Cahalane, B. (2000). Supra n.14.
18 According to the SPBGpro bono publico is legal work done
without charge or at reduced cost, for members of the public
with limited means, or charitable and other non profit-making
organisations Solicitors Pro Bono Group (undated)
Promotional Brochure
19 The Unitwas establishedto provide pro bono free
legal advice and representation in deserving cases where Legal
Aid is not available or where the applicant is unable to afford
legal assistancebarristerscan give adviceor represent
[applicants]free of charge Bar Pro Bono Unit (undated)
Promotional Brochure.
20 Boon & Abbey supra n.7.
21 See further Boon,A and Whyte,A. (2000) Pro Bono Publico:
Its a Matter of Principle 150:6957 New Law Journal27th
October at 1564
22 Rovnick, N. (2001) All for Nothing 15:37 The Lawyer17th
September at 24.
23 See, for example,Luban, D. (1988) Lawyers and Justice: an
Ethical StudyPrinceton University Press: Princeton, NJ and
Oxford
24 Supra n.14.
25 Sweet, P. and Grimes, R. (2000)Educating Lawyers in the 21st
Century: Pro Bono Activity and Proactive Learning at the
College of LawCollege of Law: London.
26 Presently lawyers may only earn CPD points for time spent
researching or developing new skills in preparation forpro bono
work. Also, trainees undertaking properly supervised pro bono
work, can apply to have this time count towards their training
contract.
...The profession should define pro bono publico, preferably in itscode of conduct...
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ENDNOTES
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Design & Layout:
e-mail: greg.whyte@mac.com
University of Westminster 2001
All rights reserved. No part of this report may be
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