Something for Nothing? The Provision of Legal Services Pro Bono Publico

7/28/2019 Something for Nothing? The Provision of Legal Services Pro Bono Publico

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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:[email protected] or [email protected]

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


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


DK A5 C 6 Litigation Commercial London 15/03-26/03


DK A6 C 25 Employment Commercial London 15/03-26/03


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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4

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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