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Judges can and should be involved in pro bono
Thursday 26 April 2012 by Lia Moses
I have heard it said that judges cannot get involved in pro bono work. On the contrary, I can think of many and various ways in which judges might get involved. And, in fact, a good number are already doing so.
Admittedly, most judges are unable to get involved in pro bono casework. While deputy judges are in just as good a position as any other practising lawyer, according to the Judicial Appointments Commission, a full-time salaried judge is restricted from returning to practice and so probably could not take on a pro bono client. However, there are many other ways of getting involved in pro bono that do not require a practising certificate.
First, judges can act as so-called Reviewers for LawWorks. Each application we receive is assessed by one of our panel of Reviewers for its suitability for pro bono assistance. The panel is currently made up of senior solicitors and barristers but there is no reason why it couldn’t include judges, as well.
Our Reviewers remain anonymous and do not provide any legal advice to the applicant. The Reviewer’s involvement in a case is limited to deciding whether, based on the applicant’s financial position and the merits of his or her case, LawWorks’ resources should be allocated.
In my opinion, this screening process is crucial to the success of our pro bono brokerage scheme. It helps to ensure that when LawWorks offers a case out to a member firm it is worthy of that firm’s time. Without this stamp of approval firms might just as well accept applications directly from members of the public.
Judges are also in an excellent position to support the Pro Bono Costs Order scheme simply by raising awareness of its existence. Pro Bono Costs Orders have been available since 2008 and since then the number of orders made under section 194 of the Legal Services Act 2007 has been steadily increasing.
However, the Access to Justice Foundation and the Bar Pro Bono Unit report that the number of orders made is still too low. Apparently, the number of orders made does not match up with the number of successful pro bono clients that come through Unit’s system.
Why is this? Is there some reluctance amongst the judiciary to award costs in cases where the winning party is represented pro bono (and therefore did not actually incur any costs), or is it because of a lack of awareness of the scheme amongst solicitors, barristers, and judges? If the latter is true, judges are in a good position to remedy this.
Judges might also get involved by referring unrepresented litigants to an appropriate pro bono organisation. I imagine that when I wrote my first blog post last month the majority of readers had no idea about LawWorks or the National Pro Bono Centre.
If lawyers are unaware, how can we expect members of the public to find us? When an individual truly slips through the net and ends up before a judge without having had any legal assistance or any contact with a front line advice agency, the only people likely to know about pro bono that will come across that individual will be the judge in the case and the lawyer for the other side - if indeed there is one.
In some cases the lawyer for the other side might be aware of the pro bono services available to his or her opponent, but, isn’t it more likely that he or she will just keep quiet? And even if the lawyer does point their opponent in the direction of some pro bono help, I wonder whether this suggestion might just be refused as a matter of principle.
Therefore, the judge might just be the only person in a position to point this sort of individual in the direction of help.
It might be argued that to make a referral would threaten the judge's impartiality. But I would have thought that a judge having to accommodate the needs of a litigant in person - which would be avoided if pro bono help is put in place - is more of threat to his or her ability to be impartial. Quite recently, a case was referred to us by a judge in the Court of Appeal.
The respondent in the case did not qualify for public funding, had no money to pay for a lawyer and could not attend the proceedings. His wife attended on his behalf but she was unable to contribute in any way. Neither the respondent nor his wife had any idea about the availability of pro bono services but, fortunately, the judge did. The judge referred the matter to LawWorks and it is hoped that pro bono help will be put in place.
What would have happened had the judge not been aware of our service? How would this have affected the proceedings for all involved? How regularly is this sort of thing happening? It’s worth noting that this particular judge only knew about LawWorks because of his involvement in the Court of Appeal Mediation Scheme (supported by LawWorks) and that, in fact, awareness of LawWorks and other pro bono organisations amongst the judiciary is low.
The problem, though, with my last two suggestions is that, if successful, they would cause an increase in demand for our service. There will be more pro bono costs orders to be processed by the Access to Justice Foundation and more applications for pro bono help to be dealt with by LawWorks and other pro bono organisations. How would our already scarce resources cope?
This leads me on to another valuable contribution judges could make i.e. to publicly support pro bono initiatives in order to raise funds and increase participation across the profession. In fact, a good number of senior judges are already making a significant contribution in this regard.
There are a number of Legal Support Trusts all around the country each with the aim of raising money to support local legal advice agencies and pro bono organisations. These trusts organise local sponsored walks throughout the year, the publicity for which mostly focuses on the senior walkers taking part. The Bristol Legal Walk was held on April 18, 2012, led by a District Judge team; the Cardiff Legal Walk was on April 26, 2012, led by HH Judge Seys Llewelyn; the Nottingham Legal Walk is planned for May 10, 2012 to be led by Mr Justice Haddon-Cave; and the Bournemouth Legal Walk will be held on May 21, 2012, led by Lord Phillips.
The London Legal Walk is also coming up on May 21, 2012. Over 100 judges from the lord chief justice to magistrates and tribunal judges are walking. Lord Justice Leveson has organised a Leveson Inquiry Team and there will also be large teams from the Association of District Judges, and The South West London, West London and Herts Magistrates. London’s immigration judges will be out again in force and The Principal Registry of the Family Division team will be on its fifth year.
Through their participation in events such as these, judges help to raise serious funds, and their involvement draws attention to the work of the London Legal Support Trust (LLST) and all the free legal advice agencies and pro bono projects it supports.
So regardless of the restrictions on judges actually taking on pro bono clients, they certainly can get involved in pro bono, and many already do.
It’s not too late to register your firm’s team for the May 21, 2012 legal walks in London, Guildford, Newbury, and Luxembourg. Please see the LLST website for more details.
Lia Moses is a caseworker at LawWorks, a national charity working with solicitors to support, promote and encourage a commitment to pro bono across the profession
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