The Olympics, and the big society, have, among other things, put volunteering firmly in the public consciousness of late.
People have been praised across the nation for the selflessness they have shown in giving up their spare time and donating their skills and talents for the greater good. There have been various debates about how all this has been achieved, and whether it will continue, but few challenge the fundamental assumption that volunteering to help your fellow man is a good thing.
LawWorks works with solicitors all over England and Wales. We rely on their support and that of their firms in order to run our various projects. We do not pay the lawyers, the clients don’t pay the lawyers, but the firms do. In that case, are they actually volunteering in the true sense of the word?
Some large American law firms have ‘death row’ departments. Essentially, the firms employ specialist practitioners to work on death row cases on a pro bono basis. There is no question that this work is commendable, but the lawyers can hardly be described as volunteers. Does this same argument apply to salaried solicitors doing the odd pro bono case alongside their other work? And how does the position differ from that of a self-employed barrister who chooses to do a pro bono case?
The majority of LawWorks members are large commercial firms. Their lawyers are paid well. If they take on a pro bono case they do so in the name of their firm, and they cannot do so without the firm’s approval. I am not aware of any firm that reduces the amount of the lawyer’s salary in these circumstances, so – despite the fact that the client is not paying – can this really be described as voluntary work?
I have heard from several legal aid firms who say that they simply could not run a case without an element of pro bono. For example, in welfare benefits cases (where representation at the First Tier Tribunal was never covered by legal aid) many solicitors would just go along to the hearings on a pro bono basis. The firm itself will receive less from the Legal Services Commission for that case than if the hearing was covered, but the lawyer will still be paid the same.
However, a direct result of the legal aid lawyer attending that hearing is that he or she will have to work later to finish whatever other work needs to be done. If the lawyer is paid nothing extra for doing so, surely this falls squarely within the definition of voluntary work? And if that’s right, surely the same can be said of the lawyers at the commercial firms? I do not know of any solicitor – legal aid or commercial – who works regular hours. A commercial solicitor doing pro bono work sacrifices their evenings and weekends in exactly the same way as the welfare benefits lawyer described above. The only obvious difference is that the commercial lawyer is usually paid more. But that would be the case whether they both do pro bono, neither do pro bono, or one does and the other doesn’t.
In fact, commercial lawyers are probably more likely to see a reduction in their take home pay if they fail to confine their pro bono work to their spare time. Many commercial firms offer fee-earners the opportunity to get involved with a range of pro bono projects. At some firms it is even positively encouraged by the setting of pro bono targets. But I imagine that it remains the responsibility of each lawyer to ensure that any pro bono work done does not interfere with fee-earning work. Failure to do so will probably have consequences come bonus time.
I accept that it is pointless comparing legal aid firms to commercial firms. But, in fact, the comparison is not necessary. Within the two very different worlds of legal aid and commercial firms there will be some firms that do pro bono, and some that don’t. And within those firms that do pro bono, there will be individuals who will choose to do it and individuals who do not.
The solicitor who chooses to do pro bono will work longer hours (without additional pay) than they would have if they chose not to. That makes the position rather the same as that of the self-employed barrister. The starting point might be different for legal aid lawyers and commercial lawyers, but the outcome is the same: they have less free time as result of their choice. Whether legal aid or commercial, employed or self-employed, the choice to do pro bono work is motivated, at least in part, by altruism.
Certainly, the firms who set up ‘death row’ departments or similar should be commended for creating those jobs, but in an environment where the state is increasingly looking to individuals to somehow provide the services it would previously have done, recognition for the value of the individual volunteers’ contribution is increasingly important. April 1, 2013 marked the start of a period of monumental change to state-funded services. At this significant time the focus has been on changes in welfare and health. Little has been said about the reduction of legal aid in the fields of employment, housing, welfare benefits and family law. Even less has been said about the role that volunteer lawyers will play (and have played for many years) in reducing the hardship that is suffered as a result of inadequate public funding for legal services in those areas.
The LawWorks pro bono awards will take place on June 19, 2013. This is an opportunity to recognise the contribution made by those firms and individuals. That is not to say that they do it for the glory, but at the very least we hope that this recognition will help to set an example to others and inspire them to do the same.
If you would like to recognise the pro bono work done by a colleague, please consider nominating them for a LawWorks award (nominations close this Friday).
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