In-house: pro bono legal advice
The legal profession in England and Wales has a long tradition of pro bono advice of which it is justly proud. The lawyers of the 16th, 17th and 18th centuries needed no lessons from their 21st century counterparts in helping those who were unable to pay. Rather, the two major changes in recent years have been, on the one hand, an increased coordination and collaboration in the delivery of those services and, on the other hand, a significant rise in demand.
The past two decades have seen the establishment of major pro bono enablers (including the Bar Pro Bono Unit and LawWorks) and the advent of pro bono programmes entrenched at the hearts of law firms in a way which added professionalism and sustainability to the commitment and generosity already inherent in the legal sector. Large City firms routinely employ full-time pro bono coordinators – some, indeed, whole pro bono teams. And, most importantly, pro bono has ceased to be the preserve of private practice but has reached long tentacles into the world of the in-house lawyer.
The in-house world has seen its own dramatic changes during this period. Demand for solicitors to work in-house has risen due to increased regulation, such as the Companies Act 2006. Between 1999 and 2009, the number of solicitors working as in-house counsel grew by 59%. With that coming of age came attendant responsibilities, and pro bono has been one that the in-house world has shown itself more than willing to take on.
The in-house world is well placed to make an important contribution to pro bono services. In-house lawyers have important skills which can make the same contribution to small charities as to large corporates, while benefiting from training programmes to deliver initial advice in free legal clinics. They work for major employers who are increasingly demonstrating the willingness to provide resources for community support, and an effective in-house pro bono programme can often be tailored to fit the corporate social responsibility objectives of the employer.
Most importantly, the in-house world has found its voice through organisations such as the GC100, the CLO Programme and the C&I Group. And that voice can speak to the panel firms retained by the sector to open the door to an enhanced pro bono offering delivered in partnership between the private and in-house sectors. An important example of this was the establishment of the National Pro Bono Centre, which would not have happened without the active support in particular of the GC100 and CLO Programme.
The significance of this lies in the second of the two major changes surrounding pro bono work: rising demand. A number of underlying causes include the downturn in the economy and the coming changes to legal aid. The latter will lead to a pressure on access to justice with which this country is wholly unfamiliar, given the provision of public funding since 1949, given the escalation since that time of legal fees and of legal complexity, and given the current economic context. England and Wales once had the highest per capita legal aid spend in the world, which was the reason why the sophisticated pro bono infrastructure of the US has so far failed to take root here. From April 2013, however, a sea change is coming.
Pro bono is not and can never be a substitute for a properly funded system of legal aid. This does not, however, let lawyers off the hook – the responsibility to give back and to promote access to justice remains inalienably part of being a lawyer. The job just got harder. And the question is – what sort of difference can pro bono make? And how? Whatever the answer is, it needs to be articulated collectively. Coordination matters. Collaboration matters. All three branches of the legal profession matter. Private and in-house sectors matter. Everyone matters. And everyone matters all over the country, because pro bono does not originate in the City. Pro bono as an ethos belongs to the entirety of the country, wherever need comes together with professionalism and humanity.
Here again, we come back to the in-house sector, because the in-house sector has a regional profile – indeed one of the most significant players in the sector is the 4,000-strong body of local authority lawyers. Local authority lawyers often have experience which is very relevant to the fields which commonly give rise to pro bono cases, such as housing and employment. LawWorks has developed a specialisation in working with in-house groups. We can help with professional indemnity insurance and Law Society dispensation for in-house lawyers and our links with the voluntary sector will help to assist people and organisations most in need.
In particular, lawyers can use pro bono projects to develop teamwork skills and networking links, not only with other in-house teams involved in pro bono but also with their own panel firms. We operate through a number of specific projects but can also provide consultancy to develop tailored programmes. Our members include an increasing number of in-house legal teams.
In April, Cumbria Law Clinic, at Cumbria Law Centre, was launched. The driving force behind the clinic has been Nicola Hartley at South Lakeland District Council and the clinic was facilitated through the LawWorks North East Hub – a regional network pilot in partnership with Northumbria Law School. Demand has been so high that the clinic has already moved to a drop-in model to reduce the burden on the law centre and also to try to assist more individuals each month.
For all these reasons, the impact of section 15 of the Legal Services Act 2007 is untimely, obstructive and damaging. Section 15 prohibits the delivery of the six categories of reserved legal activities by in-house counsel for the benefit of anyone other than their employer, where such activities are carried out as part of their employer’s business. Two of these six categories are particularly relevant to pro bono activity – advocacy and the conduct of litigation.
Despite the work to support pro bono legal advice, the obstacles are always such that clear regulatory parameters are necessary to encourage involvement by all legal stakeholders. Section 15 can only lead to in-house counsel doing less pro bono work in particular areas; some in-house counsel declining to become involved in pro bono at all; a loss of the voice of the in-house sector in pro bono developments; and a loss of resource in terms of pressure on access to justice.
LawWorks has already experienced a degree of reluctance on the part of in-house teams to provide advice to community groups and individuals where the case is likely to become contentious. In-house teams have been referred to case law and guidance on the narrow definition of the conduct of litigation, which falls foul of the section 15 prohibition. However, in a non-profit making area of activity there is no incentive for them to adopt what they view as a risky course of action.
Only legislation can achieve certainty in this area and provide volunteers with the protection they require, by clarifying what is meant by carrying out activities as part of your employer’s business. This would resolve the current uncertainty without removing any safeguards or diluting the principle that services should be properly regulated regardless of whether or not they are provided on a commercial basis.
With some very welcome pro bono assistance from Berwin Leighton Paisner, LawWorks is working in dialogue with the Legal Services Board, Attorney General’s Office and Ministry of Justice, to try to address this issue, with a view to the enactment of a legislative reform order. We hope to be able to bring good news in the future.
Rebecca Hilsenrath is chief executive at LawWorks