Pro bono: are lawyers leading the way?
Working at the National Pro Bono Centre I get to observe a large portion of the organised pro bono activities undertaken by members of the legal profession. One of the first things that struck me when I started working as a caseworker at LawWorks was the scale of the volunteer work done by lawyers. It seemed so impressive. But I was unwilling to accept that these lawyers did it just out of the goodness of their hearts. I thought, surely there’s something in it for them?
Well, it’s probably true that pro bono lawyers fall into two categories: those that do the exciting test cases, and those that take on the ‘mundane’ cases likely to interest only a likeminded pro bono lawyer who falls into the same category - even then it’s questionable. I imagine that part of the appeal for those doing the exciting cases lies in the fact that they get to explore a groundbreaking point of law, gain publicity, or expand their practice in some other way. However, only they can enjoy those benefits of pro bono. Because, after all, who will be interested in hearing about the way in which a lawyer helped a newly married couple with their boundary dispute, or spent the afternoon explaining the rules of limitation to someone who fails to understand why their case was decided without having the opportunity to present their evidence - sadly, these are the sorts of cases that come up time and time again.
On a daily basis, all across the country, lawyers of varying levels of seniority take themselves away from their fee-paying work and apply their skills to solving these everyday problems. It’s this that I found so impressive. The individuals they are helping can’t get public funding, and may have tried (and failed) to get help under a conditional fee agreement. Our volunteer lawyers help people who, for one reason or another, have nowhere else to turn. Perhaps that’s it? It’s that feeling of truly making a difference that motivates these lawyers. Or, perhaps they do it for purely altruistic reasons? A few months into the job it occurred to me that perhaps these lawyers do it because volunteering for the public good is ingrained within the legal profession in a way that it isn’t within any other.
The National Pro Bono Centre is made up of a number of charities dedicated to supporting and encouraging legal volunteering. There is one organisation coordinating the pro bono services of solicitors, one for barristers, and one for legal executives. LawWorks works with over 100 advice clinics across the country where individuals can go and sit down with a lawyer for a short period and get some free advice. That’s not to mention all the Citizens Advice and the Law Centres which remain in existence because of the funds raised by the London Legal Support Trust and the Access to Justice Foundation. All of these projects involve volunteer lawyers in one way or another.
In fact, many of these projects are completely reliant on volunteer lawyers and wouldn’t exist without them. I’m not aware of any other profession that coordinates pro bono activities on such a large scale. So, the other professions are either not doing it, or they’re doing it and not talking about it.
It might be thought that the lack of an equivalent infrastructure for other professions means that if they wanted to incorporate volunteering into their practices, they would struggle. And I think I would agree. For example, an accountant wanting to undertake pro bono work would need first to find an individual or a charity in need - an advert in the classifieds would probably result in a flood of applications for assistance. The accountant wouldn’t be able to help them all and so he or she would need to find some way of screening the applications to see which are the most deserving - and to check whether the person is truly incapable of paying for the services they require.
It’s just not realistic to expect an individual accountant to go to such efforts just to find a suitable volunteer opportunity. So, is it then that we don’t hear about any other professions volunteering on such a large scale because there’s no organisation around to coordinate these activities? I don’t think it’s that simple - LawWorks was set up by lawyers who saw the need for coordination and a structured approach, and so decided to create a solution. So why hasn’t this happened within the other professions?
It’s also worth noting that LawWorks wasn’t set up only to make life easier for the lawyers. The wider social impact of organised pro bono work on a large scale cannot be underestimated, but a more immediate benefit comes from the fact that individuals have a place to which they can turn when looking for a pro bono lawyer. I tried recently to recruit an expert witness to work on one of our cases and it was like looking for a needle in a haystack.
This gave me some insight into what it would be like for our applicants if LawWorks didn’t exist, and what it is like for those we cannot help. Firstly, I had to resort to cold calling as there was no single organisation which brokered the pro bono services of experts. I undertook this task (confident in the knowledge that my time spent working in telesales as a teenager would stand me in good stead). In the end I found someone - which was wonderful. But, this was after roughly 20 calls, 10 or so hang-ups, with answers such as ‘I couldn’t possibly justify that on commercial grounds - I run a business here Ms Moses’ and so on. I rather suspect that without my resilience as a former call centre operative I would not have succeeded. And English is my first language, I’m educated to university level, and I have regular phone and internet access - which can’t be said for many of the people who apply to LawWorks for assistance.
Who knows, perhaps somewhere there’s a small group of accountants or surveyors thinking about setting up that equivalent to LawWorks - and if there is then maybe one day they’ll be able to make similar claims to the one made here. But until then, perhaps it’s fair to say that lawyers are leading the way.
I will be using this blog to highlight the wide variety of pro bono work that lawyers are able to do through LawWorks, and the important results they achieve.
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
Comments
Thank you Lia, for an
Thank you Lia, for an informative and encouraging article. It is good to see some recognition of the good work done by lawyers in this country and some balance against the lawyer bashing that seems to have become so prevalent these days.
Pro Bono and vexatious cases
Interesting article about this and LawWorks.
Some time ago I came across some cases where an unemployed libel litigant (after being subsidised to the tune of 64K by the taxpayer in fee exemption only to lose his cases) was represented at appeal by a barrister via the Pro Bono Unit. The cases were completely hopeless and vexatious to anyone who knew of them and anything about libel law but the appeal was taken on. I think the barrister took it on because there was a possible test case regarding whether online comments were libel or slander. However as expected this argument was swept aside by the judge as completely irrelevant to the case.
I was quite amazed that scarce resources were wasted here. I must admit I felt quite negative about the pro bono scheme after that but wonder if someone can suggest how the above might have happened. I thought amongst the criteria for accepting a case through the scheme, there had to be some merit.
P.S I am not employed in the legal profession or know how the pro bono system works. Just interested in other views and experiences and how the scheme works.
Vexatious cases
Thank you for your comment Kelly.
Lia may come back to you on this too, but briefly, part of the idea of pro bono 'clearing houses' like LawWorks is to identify people whose need for advice has real merit.
While you will have seen someone acting in court on this basis, ideally pro bono advice can also keep cases that have no merit out of court - helping someone to see why their case may be weak, and explaining why.
I'm not claiming the system is perfect, but as an observer, I've seen pro bono case management, and decisions about cases, become increasingly professional. I think LawWorks' approach has been an important part of that.
I wish you would stop
I wish you would stop hijacking every post you can find on the LS Gazette into part of your irrational crusade against a solicitors firm who represented a client who lost a case.
I would be delighted to know how you calculate the £64,000 fee exemption. I have checked the relevant statutory instrument, and can not find and court fee which is at this level.
If you are criticising the barrister (which would be a change from your usual anti-solicitor trolling), then why not go on a barrister's website to put your views?
We have a system in this country, and it is called the court system. How it works is that somebody goes to court, and the other person puts in their defence. If they win, then they win. If they lose, then they lose.
If they want to appeal, they have to persuade a judge to give them permission.
Case without merit are those which lose; cases with merit are those which win. Neither you, the Guardian newspaper, a bunch of internet morons ranting on about "first amendment" rights to insult each other online using pseudonyms (rights which do not exist), hackers, people who thieve and steal online content, the SRA, the Legal Ombudsman, or anybody else decides which cases are allowed to be heard.
That is the cornerstone of the rule of law and the democratic society in which we live. If you don't like it, I would suggest Syria, or perhaps Iran may a suitable place for you to go and live. Cases "without merit" aren't brought in these countries.
The merits of the substantive
The merits of the substantive case will always be considered as part of LawWorks’ screening process. In some cases this is the overriding factor. But, in some cases a lack of merit will be outweighed by other factors in the case. Without knowing more about your case it would be impossible to say why it ended up being accepted for pro bono assistance. Also, it’s worth pointing out that the Bar Pro Bono Unit is a separate organisation to LawWorks.
As Eduardo says, sometimes LawWorks will accept a case with very little merit purely so that a lawyer can sit down with the applicant and explain why. This is in fact a very important job. For example, if an individual is trying to bring a claim which is out of time they might go from organisation to organisation asking for pro bono assistance. That case probably has no merit but if that individual does not have that properly explained then it’s possible that he or she will simply continue to look for help elsewhere – using up further time and resources. If they don’t get help elsewhere then there’s very little stopping that person from going to court as a litigant in person. Therefore, in my view, the provision of negative advice in certain circumstances is not only an appropriate use of this charity’s resources but it serves a very useful purpose.
I appreciate that you are talking about a case in which the individual was offered pro bono assistance to actually pursue a meritless case in court, not to dissuade that individual from pursuing that claim. This is of course very different. And I would agree that if there’s nothing more to this case you mention then that would seem to be an inappropriate use of scarce resources. But, that would not be consistent with what I know of the Bar Pro Bono Unit or LawWorks and so I would suspect that there is more to it.
Sometimes LawWorks will accept an application for assistance in pursuing a case with a weak chance of succeeding, but that might be because the applicant has some sort of disability which makes the task of presenting an oral argument very difficult. In some cases with a weak chance of succeeding, assistance might be offered not so much to assist the applicant to win the case, but to ensure the smooth running of the case for the benefit of the Court or Tribunal, or even the other side. These are just examples, but my point is that there could be a number of reasons that a case with a weak chance of succeeding is accepted for pro bono assistance.
It’s is not so much about the merits of the substantive case but rather the merits of the application for assistance.
It’s easy to forget that the decision for us to accept an application is not a commercial one. It’s less about chances of success and more about what help we can offer to help bring an end to the matter – whether that end is a win or not.
HIDING TRUTH OF THE ROSE-TINTED VIEW OF THE 'PRO-BONO' WORLD
It is always sweet when somebody writes lovely things about Solicitors and Barristers, and rare. Its also disingenuous coming from a lawyer. The facts are though, that Solicitors and Barristers never do anything for nothing. Their ego first, their wallet next. When you lose a case against a 'pro bono' lawyer you could be ordered to pay into the Law Works charity, which funds 'pro bono' work by lawyers. Its the legal professional funding the legal profession with client money.
Making comparisons with other professions is very naive and an insult to the other professionals.
For example, if Solicitors and Barristers only charged £25-£35ph like some of the best high street Accountants (which is almost like working for nothing) there wouldnt be a need for 'pro bono' Solicitors and Barristers, would there!
So, lets get real. We wouldnt need government funded charties giving advice on matters of family law, employment law and civil litigation, or Law Works or 'pro bono' lawyers, if the lawyers who milked the system and ripped off their clients, just didnt. Now, that would be really kind and generous, wouldnt it?
Well Monica, thanks for your
Well Monica, thanks for your reasoned contribution to the debate. I haven't seen from you before, but you are in good company on here. You should meet Matthew Kelly, Pot Pete and Maureen Carrol.
Just one thing, though. I actually could do with some legal assistance for some of my cases. What I am thinking is that I could contract them out to you. You know, you work for them and give them your knowledge and assistance for £25 per hour. You will of course pay your staff, VAT, tax, national insurance, indemnity insurance and SRA registration fees out of that.
And I assume you are (well you must be) fully audited, compliant with the rules and experienced, with your law degree, your postgraduate qualification, your two years training, your three years post training experience and your management course stage one and two.
So leave your contact details on here, and I'll start referring clients to you - I'll be happy to tell them how you won't "rip them off". What do you say?
On behalf of the Access to
On behalf of the Access to Justice Foundation, I would like to point out that pro bono costs are in fact paid to the Access to Justice Foundation. Funds are then distributed to the pro bono and free legal advice sector to support the provision of further pro bono work. They are not paid to any individual solicitor, barrister or law firm. The risk of a pro bono costs order being made can assist in settlement of cases where one party is represented pro bono.
Strange. This post appeared
Strange. This post appeared yesterday under the name Nicola Matheson Durrant. Still the same trollish rubbish though.
Domcoop again!
Eduardo
Many thanks for your reply. Very informative.
Doomcoop - no one is hijacking anything and there is no cruscade. I was asking a legitimate question of others involved in this so no need to stick your beak in. As a taxpayer and a friend of some of the defendants who fought those cases for 4 years I had concerns. The response on here has assured me that what I witnessed was relatively unusual and not a reflection of how things would normally operate.
As for the case - clearly you have not read all the eight or so hearings and judgements on Bailii. I refer you to these comments by Eady J which incidentally were very early on in the litigation. So heaven knows how much taxpayers money was poured down the drain - but I hazard a guess it was in six figures.
And don't give me this stuff that there is some god given right for litigants to have their day in court and for the judges to have to sit there and listen to the rambling nonsense. Still, things are changing and far better case management now than there once was.
By the way , yet another ridiculous and expensive libel case was thrown out only today. (McGrath v Dawkins, Amazon, Jones etc) Have a read when the judgement appears and tell me if the numerous defendants in both cases should have had to put up with it. I would imagine if you ask them where they would have preferred to live over the past few years they may well have opted for Iran.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1250.html&query=smith+and+v+and+advfn&method=boolean
2. Because he is exempt from the normal fees, the usual financial disciplines are absent. The exercise would, I understand, have cost a non-exempt litigant so far something in the region of £63,000 to date. On the other hand, under a conditional fee arrangement, as I understand it, Mr Smith is being assisted to some extent by a firm of solicitors.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean
9. Inevitably, one is left with the impression that Mr Smith and his solicitors are determined, as I described it on 12 May, to pick off the potential defendants one by one and to make it clear to them that it would be cheaper to apologise and pay up at an early stage. It may be, therefore, that his fees exempt status is being used as a tactical weapon. What is more, one of the common complaints from the litigants in person is that this impression is confirmed by the failure to comply with the defamation protocol by spelling out the exact nature of the complaint before issuing proceedings.
11. I am asked to scrutinise these cases with particular care having regard to the principles addressed by the Court of Appeal in Dow Jones Inc v Jameel (Yousef) [2005] QB 946 (cited in my earlier ruling) and to ask whether they actually represent, in each case, a genuine attempt to vindicate Mr Smith 's reputation and whether there is any legitimate or tangible advantage to be gained which outweighs the considerable demands which would be made upon public and private resources. (As Mr Tuppen pointed out, the public purse has already been effectively subsidising the strategy through the fees exemption.)
23.If litigation is being used to exert pressure on people to pay money (whether for charity or otherwise) or to apologise without any regard to the overall merits, solely with a view to avoiding spending money without hope of recovery, then the court needs to ensure that its processes are not being abused.
Kelly, you're a troll, plain
Kelly,
you're a troll, plain and simple.
Fair debate.
Anon
I have been commenting and debating on here for a good few months now. I do not claim to know a great deal about the law but the well written articles are interesting to many beyond your profession and certainly provoke some good debate. I like debate and have developed an interest in the law. And to be fair my comments have always been reasonable - albeit from a different perspective than the usual kind of contributor this site seems to attract.
I note your posts tend to be of one line. Did they not have a debating society at your law school?
You don't know what your missing!
Now behave yourself. Otherwise I'll contact my friends in the Guardian and ask them to write a story on the abuse I receive here from solicitors on a daily basis.
DELETING COMMENTS YOU DONT LIKE!
It is noted that certain Solicitors who control this magazine will delete comments made by this writer simply because they dont like the content. Because you didnt like the writers comment, you deleted it within the day! The writer also notes how rude and abusive replies are to her and other contributors who the Gazette dont like. Deleting and being rude to contributors who you dont agree with is simply disingenuous, and almost proves our point about Solicitors.
And, we dont hide behind 'anonymous' either.
By the way, if you check, the years of training, qualifying, experience, professional insurances etc that has to be undertaken by Accounts you will find that Accountants and Solictors are similar, so there is no reason why Solicitors shouldnt charge the same as Accountants. There is absolutely no good reason that a well qualified, experienced Solicitor should charge more than £35ph.
So many Solicitors would not be out of a job through redundancies or other reasons if they were affordable to everyone - its so very obvious. That's why you dont see any stories about thousands of Accountants facing the dole.
The truth hurts.
Making a comparison between
Making a comparison between accountants and solicitors is simply incredulous. An accountant does not compare with a solicitor in the terms of the breadth of knowledge that they are expected to be in possession of and which they are expected to advise in relation to. People often forget these days that reading the law is not simple. One of the keystones of the profession is that it requires highly able individuals. A solicitor is an officer of the court, and is an important and trusted advisor in people's lives. This takes talent and intelligence.
Let us also not forget the vast extent to which a solicitor can be held negligent. Even a simple conveyance for a low value property could leave the solicitor at risk of £100k+ claim should the advice and work done not be accurate. Whilst accountants will also be subject to these risks, in practice only the bigger firms that deal with bigger transactions will face the same level of risks that solicitors face in terms of the values of claims against them, and these are reflected in their costs. You will not find an accountant for one of the bigger firms working for £35 ph.
At the end of the day, you get what you pay for. If you want to pay £35 ph for your legal advice then be prepared for substandard candidates enterring the profession, and employees that are intellectually unable to deal with the weighty requirements that face solicitors day to day.
Attitude
Nicola
I have come across a few removals of posts made by 'non solicitors' and to be fair perhaps some of them are a little provocative. Likewise there are numerous contributions posted by solicitors (like the one above labelling me a troll) which perhaps should get removed. But to be honest - to me it matters not. I will simply rise above the noise and debate the issues. If they want to look like fools then let them go ahead.
I am sure any observer reading these forums will make their own judgement as to who is more credible - between members of the public with little knowledge of the law but who are polite, open minded and make valid points - or anonymous solicitors whose entire contributions often consist of one line insults.
foreclosure law
Thanks for taking the time to discuss this, I feel strongly about it and love learning more on this topic. If possible, as you gain expertise, would you mind updating your blog with more information? It is extremely helpful for me.