The range of pro bono legal work is vast, Eduardo Reyes discovers, and involves solicitors at every stage of their careers.
A commitment to pro bono work starts at law school for a growing number of lawyers, as cuts to legal aid hit local law centres hard. Students, supported and supervised by academics, university lawyers and solicitors from local firms, are getting involved even before their ‘official’ careers begin.
Incrementally, that involvement is shaping the profession’s already strong commitment to pro bono. Competition for training contracts may be extremely keen, but law firms report that candidates feel strongly enough to ask detailed questions about the subject in interviews.
The number of pro bono hours logged by law firms and legal departments fluctuates year by year, but the figures quoted by law schools show student commitment to pro bono is solid and growing. For example, in 2014 some 210 Nottingham Law School students worked on 189 cases, involving 40% more students than the previous year. They were supported in their efforts by lawyers at nearby firms Browne Jacobson, Eversheds, Howes Percival, Nelsons and Potter Clarkson.
Last month, the University of Sussex launched a legal clinic for use by the local community, opened by Law Society president Robert Bourns. Another new venture is an initiative by the University of Bristol Law Clinic to provide drop-in sessions to support parents of children living with cancer. Parents are offered advice on topics such as benefits for carers and disability living allowance.
Such examples are legion, though the commitment of the profession goes much further than covering for first-tier contact at a law centre (vital though this is). Pro bono work pairs with charities; challenges alleged miscarriages of justice; supports refugees caught up in migration crises; and helps small businesses. The list goes on. Some lawyers, with suitable guidance, will happily step outside their personal ‘comfort zone’. Others work within their core expertise.
Why do it? There is more to pro bono than simple altruism, with business benefits to be gleaned from taking on pro bono advice. Joint work with clients strengthens commercial ties and broadens staff and lawyer experience, while building ‘the team’. But although these factors are significant, they should not be overplayed.
Sally Azarmi, chair of the Law Society’s Small Firms Division, puts it simply: ‘I take on pro bono work because there are people who need my help and because I am in a position to help them.’
Azarmi is a sole practitioner, but her motivations are common to solicitors from every size of firm: ‘There are a great many people who genuinely need to have access to good legal advice, but who do not have the financial means – especially with the changes in legal aid – or the support and familiarity with the legal system which they need to help them assess their case and resolve their legal issues.
‘For some people, such as political asylum-seekers, their life may depend on this help.’
The UK pro bono protocol defines such work as ‘legal advice or representation provided by lawyers in the public interest, including to individuals, charities and community groups who cannot afford to pay and where other means of funding are not available’. Also widely accepted is the TrustLaw Index definition (produced by the Thomson Reuters Foundation in 2014): ‘Pro bono is legal assistance provided without the expectation of payment to people of limited means or to organisations that have a social, environmental, humanitarian or community focus.’
The Law Society’s Pro Bono Charter, launched today (see box) will be signed by firms and legal departments of all sizes.
Achieving these goals through pro bono work is inevitably affected by the scale of practice or department that has committed to them. The Law Society’s pro bono manual recommends that bigger firms appoint a pro bono coordinator – guided by a pro bono committee – and survey partners and staff to identify community links and relevant expertise and contacts (see How to make pro bono work, Gazette).
Larger firms may use staff knowledge of unmet legal need that meets certain selection criteria, or seek projects through a pro bono clearing house like LawWorks (the trading name of the Solicitors Pro Bono Group).
A smaller firm may end up handling identical cases, but the infrastructure attached to their pro bono commitment is inevitably less. ‘Pro bono work tends to find me,’ Azarmi says. ‘I am approached by law firms who know of my specialism or clients who know someone in need. The gravity of the case and the vulnerability of the client usually helps me decide.’
Her cases have included acting for women with young children who have been abused – women who ‘have no one else to turn to and whose lives are at risk’.
Magic circle firm Linklaters has allowed its global purview to steer its commitment to pro bono. ‘We focus on four themes,’ Elsha Butler, the firm’s global pro bono manager, tells the Gazette. ‘Human rights and rule of law, access to justice, social finance and growing [the] capabilities of not-for-profit organisations.’ Need arising from the global refugee and migration crisis has provided the firm with its leading projects. These include working with the European Council on Refugees and Exiles across seven of its offices in Europe, including Düsseldorf, Frankfurt, London and Paris.
The pro bono charter
The charter is being launched today by Law Society president Robert Bourns and attorney general Jeremy Wright. It is a Statement of Commitment that firms, ABSs and in-house teams are invited to sign up to.
Signatories will be able to access the Law Society’s best practice guidance, case studies and mini guides, and will be entitled to a three-month trial membership with LawWorks, the Solicitors Pro Bono Group. Trial membership includes access to the LawWorks quarterly Pro Bono Forum, newsletters and online resources, as well as any training delivered by LawWorks during the trial period. Signatories are also asked to participate in a biennial reporting process to demonstrate their commitment to providing pro bono advice.
The charter states: ‘We believe that a commitment to access to justice is at the heart of the legal profession and that pro bono work, as one method of achieving this, is an integral part of the working lives of solicitors.
‘Pro bono legal work is always only an adjunct to, and not a substitute for, a proper system of publicly funded legal services. Pro bono acts as an adjunct to state-funded services, providing an exceptionally important contribution to society, helping many vulnerable people, families on lower incomes, charities and international communities, whose legal needs would otherwise be left unmet.
‘We recognise that at all stages throughout their career, solicitors have the capacity to use their professional expertise to help those with legal needs and we will strive to encourage a commitment to pro bono throughout the solicitor profession.
‘Accordingly, we will:
- Strive to achieve best practice in our pro bono work, for individuals and organisations, who require legal advice in order to access justice but who cannot afford it.
- Support the development of best practice in pro bono by collecting and sharing examples of practical activities that contribute to an increase in the effectiveness of pro bono delivery and result in more solicitors getting involved in such work and signing this Statement of Commitment.
- Take responsibility for meeting our Pro Bono Charter commitments.
- Work together to develop and adopt future protocols and best practice guidance that support the practical implementation of the aims of this Pro Bono Charter.
- Contribute our data to a joint biennial report based on a monitoring exercise to measure the impact of this Pro Bono Charter and its protocols in improving best pro bono practice and increasing the amount of pro bono delivery.
‘As a minimum sign of commitment to pro bono, we agree that we have (or are developing):
1. A pro bono policy;
2. An identified person or committee responsible for pro bono work; and
3. Endorsed the Joint Pro Bono Protocol.’
Source: The Law Society
Linklaters lawyers review and summarise cases and judicial decisions to contribute to the European Database of Asylum Law. They have also helped many organisations provide legal advice and support to individuals who are seeking asylum or refugee status having escaped trafficking. These include Sanctuary for Families (sex trafficking), Oasis Belgium/Stop the Traffik (sex trafficking), Visayan Forum Foundation (trafficking and slave labour in the fishing industry).
The Linklaters team in New York is part of the International Refugee Assistance Project (IRAP). This is a New York-based organisation dedicated to providing comprehensive legal aid to refugees seeking resettlement, providing representation for those who have none, and helping vulnerable families and refugees navigate the complex rules and processes of the international resettlement system.
The IRAP institutional link with Linklaters is well established, but many smaller firms work on similar cases. Azarmi recalls her first case: ‘My father was an Iranian who fought for democracy all his life. Political asylum-seekers turned to him as an expert witness.’
When her father died, he was helping an Iranian national with his case. ‘The Iranian national approached me for help,’ she continues. ‘His asylum case was over 11 years old and had been poorly handled by previous legal advisers. I worked on it for 16 months.
‘It was very complex and involved a myriad legal issues. I argued an entirely fresh claim for him at appeal. There was a three -day appeal hearing. We instructed counsel, won the appeal and permission to appeal further was refused at every level on the strength of [this] judgment.’
Is ‘some’ legal help always better than ‘none’? Big Society proponent David Cameron may have come and gone, but surely any effort for someone in need is a good thing?
Questions like this misunderstand the idea and ideal of pro bono – it is not just a variant on volunteering. Pro bono deploys the highest professional skills and standards. It is part of the ideal of ‘pure justice’ referenced by Gazette columnist Jonathan Goldsmith.
Linklaters’ Butler explains: ‘Where we are operating outside our areas of specialisation, in each case we ensure that appropriate training and supervision is provided and, where practicable, we build in-house knowledge and expertise.’
However, as the base of lawyers whose careers revolve around social welfare law has diminished with public funding cuts, so the challenge has arisen of how the resulting loss of expertise can be met.
What the profession has not done is simply throw keen commercial law students at the problem. Instead, where resources and support allow, an infrastructure has been created to train, guide and supervise pro bono work at clinics and for clients at first-tier tribunals.
The work of the Free Representation Unit (FRU) demonstrates how this can work. Since 1972 the FRU has been providing representation for clients at social security and employment tribunals for people who cannot afford a lawyer and are not eligible for legal aid. (The fact that FRU help is geographically restricted to London, the south-east and Nottingham is a sign that such support is far from universal.)
FRU has a selection test, passed by 24 of Nottingham Law School’s students in 2014/15. The volunteers accept cases listed for trial, typically a few weeks away, and work with the support and direction of FRU’s own legal officers, who provide advice and support on the law and the tribunal process. Since 2013, Nottingham students working through the FRU have recovered £100,000 in compensation in employment cases and £160,000 in social security cases. ‘We don’t means-test,’ Nick Johnson, director of Nottingham Law School’s legal advice centre, explains. ‘We do, though, assess whether or not the case is too complex for our students or too urgent.’
Training providers supporting what’s termed ‘secondary specialisation’ include:
- A LawWorks cooperation with charity Together for Short Lives and the Child Poverty Action Group;
- The Asylum Support Appeals Project, which trains and supports those advising failed asylum-seekers at the Asylum Support Appeals Tribunal;
- The Children’s Pro Bono Legal Service; and
- The Court of Appeal Pro Bono Advocacy Scheme.
Unmet legal need can also be identified in the commercial sphere, and here lawyers taking on pro bono are likely to be advising in their own practice area. One such area is competition law.
‘Small and medium-sized businesses and individuals with competition law grievances are often not in a financial position to instruct specialist antitrust advisers, despite feeling they may have a genuine complaint,’ TLT competition partner Miles Trower tells the Gazette.
The Competition Pro Bono Scheme, of which Trower’s firm is a member, was set up some years ago in collaboration with a number of other UK competition practices to give free time and resource to address this need. Free advice is provided to individuals and businesses that believe their rights under the European Community Treaty or UK competition law have been infringed – or who are concerned that they may have infringed another’s rights.
‘The criteria for accepting cases are relatively simple,’ he explains. ‘We need to make sure that we avoid conflicts and have the resources available to offer prompt and clear guidance. If these criteria are met, the merits of the case are discussed with the applicant before proceeding.’
In these cases, Trower says, one senior lawyer will normally be assigned per enquiry ‘as they will probably be best placed to advise following an initial consultation with the applicant’. This involves ‘assessing the merits of the complaint and offering preliminary guidance, which might include suggesting alternative commercial solutions if the competition aspects of the complaint are questionable’.
Another commercial scheme of note is run by the Financial Services Lawyers Association. This involves qualified lawyers providing free legal advice to approved persons who are subject to disciplinary action by the Financial Conduct Authority, and whose case has been referred to the Regulatory Decisions Committee (RDC).
The scheme allocates a lawyer to provide clients with general legal advice on their case, possibly including assistance in giving written and oral submissions to the RDC or Upper Tribunal (which considers appeals).
- Casework involves a solicitor or firm accepting instructions to advise or represent an individual.
- Clinics involve partnerships with other agencies such as legal advice organisations or law schools, and potentially other law firms, in order to provide discrete one-off pro bono assistance.
- Not-for-profit organisations can be given assistance in areas that often match a pro bono solicitor’s existing skill set.
- Other models of pro bono include international work; secondments; technology-based services; co-counselling; law reform and policy work; and public legal education.
Professional associations also organise pro bono schemes. In the IP sphere, the institutes of patent attorneys, and trademark attorneys, together with the International Property Lawyers’ Association, all support the IP Pro Bono Scheme, launched last month. The Law Society is also a backer.
Prompted by a ‘challenge’ set by Judge Hacon, presiding judge of London’s Intellectual Property Enterprise Court, the scheme offers free legal advice and support to patent and trademark holders in legal disputes. Participating firms accept cases that meet its criteria on a ‘rota’ basis.
Law schools’ activities are also reflecting the increased focus on commercial pro bono. ‘We are developing a commercial law service which will provide those who do not seek or cannot afford basic advice on commercial law issues,’ Nottingham’s Johnson reveals. ‘Many of our students are looking to go into commercial practice, so this meets an important training need.’
Not all pro bono legal work involves direct advice to clients. Also counted is work to promote knowledge of the law necessary to identify legal rights, and to improve people’s ability to access justice. Nottingham Law School, for example, secured funding from the UK Intellectual Property Office to improve knowledge of intellectual property law among art and design students.
Pro bono often complements a law firm or legal department’s charitable and volunteering work – but should not be conflated with it. For example, at Linklaters the firm’s lawyers have also volunteered at refugee camps and in Germany have assisted vulnerable refugees in adapting to their new environment, building links and friendships.
The in-house contribution to pro bono legal advice is rising. That is one conclusion of the Thomson Reuters Foundation’s ‘TrustLaw Index’ of pro bono, an international survey of 64,500 lawyers. The report accompanying the index noted: ‘In-house lawyers are typically not covered by professional indemnity insurance for pro bono work but lawyers are finding ways around this barrier by, for example, collaborating with law firms on joint pro bono projects. ’In England and Wales the SRA’s practice framework rules have become less restrictive, and now allow in-house lawyers to provide services in connection with reserved legal activities to the public on a pro bono basis, provided:
- There is insurance in place reasonably equivalent to that required under the SRA Indemnity Insurance Rules.
- The work does not involve reserved legal activities, unless providing these services to the public is not part of the employer’s business (with or without a view to profit).
For more information, see the Law Society website.
A disciplined approach
Law school is stressful and demanding; practice equally so. Pro bono can be a drag on the resources and focus of small and large firms, and departments alike. Why do any of this?
‘Although I take these cases on to help, I have learnt a great deal from each case about the law and my own ability, and met many amazing people who have become long-term contacts,’ Azarmi relates.
Without a degree of discipline, she notes, a pro bono commitment can overwhelm a committed lawyer. ‘It is really important to set boundaries and make it clear that you can only help with issues within your expertise and remit,’ she says. ‘You should define what it is you will do and stick to that, otherwise clients can sometimes start to look to you for all the issues in their lives, which can be overwhelming. And set a limit on the number of cases or hours you can take on each year.’
She concludes: ‘If you do take on a pro bono client, needless to say, their case should be afforded the same level of service as your best fee-paying client.’