- J. Fletcher, (1579–1625) Wit Without Money act 5 scene 2 in A. Partington (ed.) The Oxford Dictionary of Quotations (Oxford: Oxford University Press, 1996).
- Head, University of Westminster School of Law.
- Researcher, University of Westminster School of Law.
- See A. Abbott “Jurisdictional Conflicts: A New Approach to the Development of Legal Professions” (1986) Amercian Bar Foundation Research Journal 187; R.L. Abel “The Decline of Professionalism?” (1986) 49 The Modern Law Review 1; R.L. Abel, “Between Market and State: The Legal Profession in Turmoil” (1989) 52 The Modern Law Review 285; R.L. Abel, “Why does the ABA Promulgate Ethical Rules?” (1981) 59 Texas Law Review 639 and discussion in A. Boon and J. Levin The Ethics and Conduct of Lawyers in England and Wales (Oxford & Portland, Oregon, Hart Publishing, 1999).
- T. Johnson, “Expertise and the State” in M. Gane and T. Johnson, Foucault's New Domains (London and New York: Routledge 1993) and see R.L. Abel, The Legal Profession in England and Wales (Oxford, Basil Blackwell, 1988) (and supra n. 4); A.A. Paterson, “Professionalism and the Legal Services Market” (1996) 1/2 International Journal of the Legal Profession 137; Boon and Levin, ch. 2, supra n. 4.
- Legal practice is a classic example of a cartelised market which constrains competition on price and where sophisticated advertising is more effective in attracting and retaining business: J. Scott, Corporations, Classes and Capitalism (London: Hutchinson, 1979).
- Boon and Levin, supra n. 4, Ch. 1.
- T.J. Johnson, Professions and Power (London and Basingstoke: Macmillan, 1972).
- G. Hanlon, “A Profession in Transition?—Lawyers, the Market and Significant Others” (1997) 60 Modern Law Review 798.
- C. Menkel-Meadow, “The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers” in A. Sarat and S. Scheingold (eds) Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998).
- L. Webley, Trainee Solicitors' Group/Young Solicitors' Group Pro Bono Survey (London: Institute of Advanced Legal Studies, 1999).
- P. Singer, How Are We To Live? (London: Manadarin Paperbacks, 1994), J. Hospers, Human Conduct: Problems of Ethics Second Edition (London & New York: Harcourt Brace Jovanovich, 1982).
- R. Axelrod, The Evolution of Co-operation (London: Penguin, 1994), M. Ridley, The Origin of Virtue (Harmondsworth: Penguin, 1996), A. Brown The Darwin Wars: How Stupid Genes became Selfish Gods (London & Sydney: Simon and Schuster 1999).
- S. Roberts, Order and Dispute: An Introduction to Legal Anthropology (Harmondsworth: Penguin 1979).
- Blood donorship, for example, is widespread and largely anonymous: see Hospers, supra n. 12.
- Maimonedes, Mishneh Torah, Book 7, ch. 10 reprinted in I. Twerskey, A Maimonedes Reader (New York: Behrman House, 1972) at 136–7 and cited in Singer, supra. n. 12.
- D.L. Rhode, “Cultures of Commitment: Pro Bono for Lawyers and Law Students” (1999) 10 American Bar Foundation Researching Law 1
- Id.
- This was a comment made by a mature student in a context unconnected with this research. Many of our respondents have expressed similar motivations.
- This is based on data from the Annual Social Attitudes Surveys in 1993 and 1996 and analysis conducted for the Charities Aid Foundation (CAF) by R. Tarling of the Institute of Social Research, University of Surrey. We are grateful to Cathy Pharoah of CAF for permission to use it.
- 22 per cent from 1,000 questionnaires.
- i.e., 43 out of 80 trainee respondents and 40 out of 90 young solicitor respondents (Webley, supra n. 11 at 15).
- i.e. 61 per cent of trainees identified personal development and 61 per cent of young solicitors identified helping the community as their reason for undertaking pro bono (Id. Table 6).
- 54 per cent of trainees and 42 per cent of young solicitors (id.)
- A. Boon and R. Abbey, “Moral Agendas? Pro bono publico in Large Law Firms in the United Kingdom” (1997) 60 Modern Law Review 630, and see A. Boon, “Cause Lawyering and the Impact of Globalisation“ in A. Sarat and S. Scheingold, Cause Lawyering and the State in Global Perspective (forthcoming).
- S. Scheingold and A. Bloom, “Transgressive Cause Lawyering: Practice Sites and the Politicization of the Professional” (1998) 5 International Journal of the Legal Profession 209.
- Among the reasons given by Webley's respondents for not undertaking pro bono work only 11 per cent of trainees and 10 per cent of young solicitors were discouraged by the firm. However, 45 per cent of trainees and 60 per cent of young solicitors said that “they did not have the time” (Webley, supra n. 11, at 22).
- Supra n. 10 at 37.
- Supra n. 26 at 228.
- Id. at 223.
- Supra n. 11 at 20 and 27
- For example, see the “Mclibel” litigation, Helen Steel and David Morris v. McDonald's Corp and McDonald's Restaurants Ltd (1999) CA (Pill LJ, May LJ, Keene J) 31/3/99 and Lovell White & Durrant's representation of IMUSA (the Independent Manchester United Supporters) in the Monopolies and Mergers Commission inquiry into BskyB's proposed merger with the football club. “Lawyers retail a commodity manufactured by the state, law.... The only legitimate purpose of the system of law retailing is expressed in our slogan: Equal justice Under Law. Without equal
- Supra n. 26 at 223.
- D. Heater, Citizenship: the Civic Ideal in World History, Politics and Education (London & New York, Longman, 1990), Hospers, supra n. 12 at 134.
- D. Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press 1988).
- Id. at 286 see also Rhode supra n. 17 and R.A. Katzman, The Law Firm and the Public Good (Washington, DC: Brookings Institution 1995) at 6.
- J.W. Bellacosa, “Obligatory Pro Bono Publico Legal Services: Mandatory or Voluntary? Distinction Without a Difference?” (1991) 19 Hofstra Law Review 745 at 747.
- A.I. Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (New Jersey: Princeton University Press 1999) but, for earlier justifications, see M. Freedman, “Professional Responsibility of the General Defense Lawyer: The Three Hardest Questions”, (1966) 64 Michigan Law Review 1469 and C. Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale Law Journal 1060.
- For the historical context see J. Brundage, “Legal Aid for the Poor and the Professionalisation of Law in the Middle Ages” (1988) 9 Journal of Legal History 169 and S.B. Rosenfeld, “Mandatory Pro bono” (1981) Cardozo Law Review 255 (also reviewing legal precedent in the USA). Luban's argument (see above) implies that providing free service that facilitates access to justice is the only true pro bono publico (supra n. 35 at 277).
- Indeed, Pound famously defined professions as “... a group of men pursuing a learned art as a common calling in the spirit of public service” (R. Pound, The Lawyer from Antiquity to Modern Times: With particular reference to The Development of Bar Associations in the United States (St. Paul, Minnesota: West Publishing, 1953)
- See further T. Goriely, “Law for the Poor: The Relationship Between Advice Agencies and Solicitors in the Development of Poverty Law” (1996) 3 International Journal of the Legal Profession 215.
- Id.
- R. Hoggart, The Way We Live Now (London: Chatto & Windus, 1995).
- In 1976 the Royal Commission on Legal Services estimated that 3,300 solicitors supported advice agencies by offering free services (The Royal Commission on Legal Services Report, Cmnd 7648, 1979 para 2.21).
- L. Hiscock and G. Cole, “The Motivation, Use and Future of Volunteer Lawyers in Law Centres“, (1989) Journal of Social Welfare Law 404.
- The survey conceded that the majority performed one hour or less of such work a week (G. Chambers and S. Harwood, Solicitors in England and Wales: Practice, Organisation and Perceptions (London: The Law Society, 1990)).
- Letter from Lord Philips of Sudbury in connection with this research, dated 20 October 1999.
- Philips, a partner in a leading firm in the field of charity law, Bates, Wells and Braithwaite, had the active support of John Hayes, then Secretary-General of the Law Society.
- Supra n. 47.
- Reflected in his observation that “... today there is less liberality of outlook than anyone remembers, and not much interest in what the profession actually professes” (A. Philips, “Time for Pro bono” 90/34 Gazette 22 September 1993 at 2). For a discussion of professional ideology see Boon and Levin, supra n 4, Ch. 1.
- S. Wallace, “Are Solicitors Serving Society, or Vice Versa?” The Independent 5 November 1993.
- Solicitors Serving Society: A Report of the Pro bono Working Party (London: Law Society, 1994), and see The Times 9 October 1995 (see further R. Abbey and A. Boon, “The Provision of Free Legal Services by Solicitors: A Review of the Report of the Law Society's Pro bono Working Party”, (1995) 2 International Journal of the Legal Profession 261).
- Supra n. 52. at para. 2.
- Supra, n. 47.
- These were that the Law Society should: adopt a policy statement on voluntary legal services, establish a scheme of representation for advice agency clients, establish a trust fund to receive voluntary contributions to support the provision of legal services not covered by legal aid (including those offered by the advice sector), establish a placement service for volunteer and unemployed and trainee solicitors in advice and law centres, establish mechanisms to support new initiatives and encourage solicitor participation and a Code of Practice and Model Statement of principle be adopted for use, for example by local law societies, consider awarding CPD points for pro bono work identify the kind of work that would qualify and specify whether an element of training would be a prerequisite, reject any mandatory requirement that solicitors provide voluntary legal services (supra, n. 52)
- J. Flintoff, “Pro bono or Promotion?” Legal Business January/February 1995 at 44.
- Supra n. 55.
- G. Bindman, “Justice for the Ordinary Man” The Lawyer 2 April 1996 at 7.
- Supra n. 52 at para. 12.
- Supra n. 47.
- A personal injury lawyer, for example, explained that he had a conditional fee agreement with a client that provided for a 20% uplift. In the event he recovered less damages than he expected and did not claim the whole uplift, not because it broke the Law Society's recommended ceiling of 25 per cent of the damages, but because the litigation would not have produced an acceptable return for the client.
- P. Pleasence, Report of the Case Profiling Study: Personal Injury Litigation in Practice (Research Paper No. 3) (London: Legal Aid Board Research Unit, 1998), J. Shapland, A. Otterburn, N. Canwell, C. Corre and L. Hagger, Affording Civil Justice (London: Law Society, 1998).
- This interview was conducted in 1996. The interviewee was critical of commercial firms who took on cases for rich clients who ran out of money and needed legal aid. “... they said that they had advised their client that, because he now required legal aid, he needed to go to a firm which was expert in legal aid work. Now, of course, this was a piece of semi-commercial litigation which they were quite capable of conducting... the only reason they wanted to hand it over was because they were not prepared to work for legal aid rates of pay; but they were quite happy that we should. And that is not an isolated example.”
- Normal fees differ hugely between firms, between staff within firms and even between court scales in different parts of the country. Last year a practice direction highlighted significant local and regional differences in amounts recoverable on taxation. In Luton for example, it provided £80 an hour for solicitors of up to four years' qualification. Under a local agreement, however, the sum awarded was, by custom, £108 per hour (S. Allen, “Society Acts on Costs Guide”, Law Society's Gazette 2 March 1999, p. 5).
- See e.g. “First pro bono prizes awarded” 96/27 Law Society's Gazette July 1999, p. 4.
- “Herbert Smith to deliver free advice from new legal centre” The Lawyer 4 October1999.
- J. Jenkins, Law Society Omnibus Survey 2: Report 5: Pro Bono Activities Conducted by Private Practice Solicitors (London: The Law Society, 1997).
- News release by the Law Society, Tuesday 14 October 1997.
- Boon and Levin, supra n. 4 at 234.
- Supra n. 25.
- An attempt by the Law Society's Working Party to collect data from local law societies produced a more dismal result still (see the Working Party Report, supra n. 52).
- Research into the 100 largest firms found only twenty-seven performed pro bono work exceeding £10,000 in value per annum (supra n. 25).
- Supra n. 11.
- S. Pye and A. Laferla, “BAe Threatens Unethical Firms“, The Lawyer 8 March 1998, p. 1.
- M. Zander, “The Thatcher Government's Onslaught on the Lawyers: Who Won?” (1990) 24 The International Lawyer 753.
- Id.
- “Labour Suggests Levy to Support Legal Assistance”, The Lawyer 27 September 1994, p. 3.
- “Hard Labour?” The Times 7 November 1995 at 35.
- The model, it was suggested, might be provided by the American Bar Assocation's projects in Chicago that provide resources from private practice for specific projects, already copied in 600 locations in the USA. (”Pro Bono Wrangle” 93/46 Law Society's Gazette 13 December 1996, p. 6).
- Id.
- “Boateng in Threat to Impose Pro bono Rules”, The Lawyer 10 December 1996, p. 1.
- These affected both the civil and criminal fields, imposed franchising and block contracting requirements and created a Criminal Defence and Community Legal Service.
- It was widely speculated that the quoted levels of earning (£1 million per annum) was only true of top commercial silks although it was said that top criminal silks, particularly those specialising in fraud, and those conducting child care cases, could earn £200,000 to £300,000 per annum, largely from legal aid. (The Guardian 15 July 1997 at 1). C. Dyer, “Law Chief Fires Fresh Volley on ‘Fat Cat’ Lawyers”, The Guardian 10 December 1997. In June 1998 the clerk to the Parliaments refused to sanction legal aid bills presented by QCs for work in the House of Lords, the first time this had ever happened. (C. Dyer, “On Trial: A System That Makes QCs Rich” The Guardian 2 June 1998).
- House of Commons Hansard written answers for 11 March 1999 to questions 75785 to 75787
- A. Philips, “Want of Experience” Law Society's Gazette 28 April 1999.
- FRU also established its own Chambers Scheme to broaden the appeal of FRU's work to senior barristers.
- See further Boon and Levin, supra n. 4, 234 and 238.
- S. Solley and R. D'Cruz, “Deliverance from Death Row?” Counsel 22 October 1998.
- See infra at text to n. 124
- “Solicitors Vote for Boost to Pro Bono” The Lawyer 12 November 1999, p. 1.
- The Solicitors Pro Bono Group brochure (undated).
- M. Swallow, “Who is Behind Pro bono?”, The Lawyer 27 September 1999
- Letter from Judith Philips of Clyde & Co., dated 18 June 1999, announcing the launch on 15 July 1999, and see F. Gibb “Young lawyers to get on-the-job training” The Times 25 October 1999
- Supra n. 92.
- Id.
- Council Minutes, 24 September 1998 (Motion proposed by Robert Venables and seconded by Nancy Nagle. The square brackets denote an amendment to the original motion proposed by Lucy Winskell and accepted by Venables).
- Data from one of the Law Society's panel surveys published in 1997 suggested that firms across a wide spectrum of practice sites recognised professional and personal advantage in pro bono work. 85 per cent of a representative sample of firms agreed that providing voluntary services enabled the firm to contribute to the public good, 68 per cent that it enhances the reputation of the firm and 58 per cent that it promotes the loyalty and goodwill of clients (Research and Policy Planning Unit, Panel Study of Solicitors' Firms (London: The Law Society, 1997).
- Law Society's Gazette 20 January 1999, p. 4.
- At the Law Society Festival which took place on 30 October 1999 (See Law Society's Gazette 6 November 1999).
- Possibly to be calculated as a number of hours of pro bono work per solicitor or a target calculated as a percentage of gross fees (id.).
- Supra, n. 26.
- Id. at 222.
- E. Nosworthy, “Ethics and Large Law Firms” in S. Parker and C. Sampford (eds) Legal Ethics and Legal Practice: Contemporary Issues (Oxford: Clarendon Press, 1995) at 71.
- Responsibility for indigent prisoners was recognised in the 1908 Canons of Professional Ethics and the principle has been developed at every reiteration of the Code. There remain doubts as to the strength of the pro bono culture in the United States (Rosenfeld, supra n. 37, Rhode, supra n. 17 M. Galanter and T. Palay, “Public Service Implications of Evolving Firm Size and Structure”, in R.A. Katzmann, (ed.), The Law Firm And The Public Good, supra n. 36 at 41.
- As amended 8 February 1993, American Bar Association House of Delegates, Boston, Massachusetts, per Report No. 8A (American Bar Association Model Rules of Professional Conduct (Center for Professional Responsibility, 1999).
- Law Society of Alberta Code of Professional Conduct (Calgary: Law Society of Alberta 1995).
- Access to Justice: Final Report (New South Wales: Law Society 1998).
- Supra n. 40.
- See for example B. De Sousa Santos, Towards a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (London & New York: Routledge 1995); Y. Dezalay & B. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago & London: University of Chicago Press, 1996); A. Boon and J. Flood, “The Globalisation of Ethics: The Significance of Lawyers' International Codes of Conduct” [1999] LE 29; H.W. Arthurs, “A Global Code of Legal Ethics for the Transnational Legal Field” [1999] LE 59.
- A. Gamble, The Free Economy and the Strong State: The Politics of Thatcherism (Basingstoke and London: The Macmillan Press Ltd. 1994). J. Gray, False Dawn: The Delusions of Global Capitalism (London: Granta 1998). G. Soros, The Crisis of Global Capitalism: Open Society Endangered (London: Little Brown & Co. 1998).
- Gray, id.
- B. Jordan, The Common Good: Citizenship, Morality and Self-Interest (Oxford & New York, Basil Blackwell, 1989).
- Soros, supra n. 110
- T. Blair, The Third Way: New Politics for the New Century (London: The Fabian Society, 1998).
- Id. at 6.
- Id. at 2.
- Id. at 14.
- And, coincidentally, Paul Boateng (Home Office Annual Report 1998–1999, Chapter 16).
- Id.
- A survey of 1,400 charities conducted by the Institute of Volunteering Research showed that 23% of the population participate in employer supported volunteering compared with 16% in 1993: N. Hill “Market Ethics” The Guardian (Society supplement) 19 May 1998 at 85.
- Gray, supra n. 109
- R. Theobold, Business and the “Community”: Some observations on the development of corporate sponsored volunteering in Britain (London, University of Westminster Press, 1993).
- Id. at 6.
- Indeed Business in the Community published a pamphlet on employee volunteering subtitled “Lessons from America” (Id. at 7).
- Hill, supra n. 120.
- A senior partner in a firm of London surveyors noted that the ethos and culture of Business in the Community, which by that time was turning from a campaigning organisation to more service delivery, was not appropriate to professional firms.
- The professional firms agreed to provide up to £5,000 worth of their professional services for specific projects at no charge.
- “Solicitors Vote for Boost to Pro bono“, The Lawyer 12 November1996.
- Nosworthy, supra n. 103 at 70.
- Id.
- By 1998 profits per partner did not drop below £170,000 in any of the top 20 firms and in 2 firms exceeded £500,000 per annum (Boon and Levin, supra n. 4 at 76, based on data published in Legal Business February 1998). In 1998 some City firm lawyers had significantly exceeded this. Partners at Slaughter and May had incomes of £950,000 while those at Allen and Overy, Freshfields, Clifford Chance and Linklaters received upwards of £650,000 (The Lawyer, “The Lawyer 100 Survey” The Lawyer 1999, and see The Guardian 2 September 1999.The commercial law firms contributed 2% of the UK's gross domestic product in 1998 (The Guardian 2 September 1999). Even in 1993 a senior partner in a large London firm noted that if he went to lunch with a client who did not complain about lawyers' fees it was an exceptional lunch (J. Ames, “Public Interest”, 90/32 Law Society's Gazette 8 September 1993, p. 11).
- W.W. Powell “Fields of Practice: Connections between Law and Organisations” (1996) Law and Social Inquiry 959
- The company's legal department was the first in-house legal department to gain Law Society approval to perform pro bono work. A waiver was necessary because the Law Society's professional conduct rules provide that in-house teams can only advise their own companies. The first project is to advise the local authority on an application for a lottery grant to establish a furniture renovation and distribution centre for the local needy (The Lawyer 2 November 1998 at 13).
- Id.
- Supra n. 74
- D. Jordan, “Zurich In-House Demands Firms Commit to Pro bono” (1999) The Lawyer 4 October.
- Partner in large firm interviewed in 1996.
- See generally P. Sweet The Law Firm Pro Bono Manual: A Guide to Creating a Structured Pro Bono Programme Within a Law Firm (London: Solicitors' Pro Bono Group, 1999).
- Interview, 1996
- Supra n. 142 (but note the attempt by BITC to encourage community projects in 1996 (”Firms Win Pro Bono Praise” 93/01 Law Society's Gazette 10 January 1996) and claims to “serve communities” through internet advice services (e.g. “Birmingham firm puts pro bono service on the internet” The Lawyer 28 November 1995, p. 40)
- D. Boyle, “Time is a Great Social Healer” New Statesman 22 August 1999, p. 18.
- R.J. Samson and S.W. Raudenbush and F. Earles, “Neighbourhood and Violent Crime: A Multi-Level Study of Collective Efficacy“, (1997) 277: 5328 Science 918.
- W.W. Powell, “Fields of Practice: Connections Between Law and Organizations” (1996) 21 Law and Social Inquiry 959.
- Scheingold and Bloom, supra n. 26 at 221.
- C. Barrie “Counting the Cost of Conscience” The Guardian 22 January1999.
- Garry Hart, formerly of Herbert Smith and Co. and now special adviser to the Lord Chancellor, suggested that senior lawyers should spend more time on pro bono work “in their twilight years” rather than earning more money. Hart took a drop in salary from £250,000 per annum to £73,000 per annum in his new role (The Lawyer 1 March 1999, p. 5).
- The Social Attitudes Survey suggests that a substantial majority feel that “doing voluntary work is a good thing for volunteers because it makes them feel that they are contributing to society” (supra n. 20).
Legal Ethics
Volume 2, 1999 - Issue 2