- Senior Lecturer in Law, University of Westminster and Research Fellow, Institute of Advanced Legal Studies, University of London, UK.
- See, for example, A. Boon and J. Levin The Ethics and Conduct of Lawyers in England and Wales (Oxford, Portland Oregon, Hart Publishing, 1999); D. Nicolson and J. Webb Professional Legal Ethics: Critical Interrogations (London & New York, Oxford University Press, 1999); A. Boon and A. Whyte “Charity Begins at Home: The Aetiology of the New Culture of Pro bono Publico [1999] LE 169; on the ethical dimension to pro bono, also M. Galanter and D. Palay “Large Law Firms and Professional Responsibility” in R. Cranston (ed.) Legal Ethics and Professional Responsibility (Oxford, Clarendon Press, 1995) at 201 and R. Abbey and A. Boon “Moral Agendas: Pro bono Publico in Large Law Firms in the UK” (1997) 60 MLR 630 for an insight into the increasing interest by large law firms in pro bono work between 1990 and 1994.
- See Boon and Whyte supra, n. 2, p. 174.
- The resurgence in pro bono may, however, be short-lived if trends in the USA are followed in Britain. In a survey carried out by American Lawyer magazine in July 2000, it was reported that of the approximately 50,000 lawyers in the highest grossing American law firms 100 have cut their pro bono hours from an average of 56 hours per year in 1992 to 36 hours per year in 1999 (as reported in the New York Times, 17 August 2000 by Greg Winter and circulated by the Brennan Center Legal Services Alert) 31 August 2000. It was suggested that these firms had to concentrate on fee-earning in order to meet the high salaries that their solicitors are now commanding. As City law firms seek to compete for staff with American firms in London this too may affect pro bono schemes within these firms.
- The survey was sponsored by five City law firms: Allen and Overy, Clifford Chance, Herbert Smith, Linklaters and Paines and Lovell White Durrant.
- Boon and Whyte found that practitioners thought pro bono work ranged from legal services provided entirely free of charge or at a significantly reduced cost, non-legal work and support for community projects in money or money's worth, see supra n.2 at pp. 176–80. For an illustration of the debate see Solicitors Serving Society: A Report of the Pro bono Working Party (London: Law Society, 1994) and Abbey and Boon, supra n.2.
- The Law Society's Pro Bono Working Party suggested a wider definition which encompassed public service: See Solicitors Serving Society: A Report of the Pro Bono Working Party supra n. 6. The Law Firm Pro bono Project's definition was even broader, including work such as “serving as general counsel to community organizations, involvement in community economic development work, creating venture capital for low-income individuals and businesses, developing affordable housing and many other skills critically needed by poor and disadvantaged individuals and their communities”. See The Law Firm Pro bono Project Summary p. 4 (Washington D.C.: The Pro bono Institute, 1999). The Law Council of Australia's definition as adapted by Voluntas of the Victoria Law Foundation is narrower in scope and focuses more on the process of lawyering and legal education. The full definition is available at the Victoria Law Foundation's website: http://www.viclf.assn.au/vol.what.htm.
- Respondents could choose any or all of the following: advice on sites external to the office, first hour interview free, law clinics within the firm, charitable work, or they could specify another activity.
- For a discussion of professionalism see E. Friedson, Professionalism Reborn. Theory, Prophecy and Policy (Oxford, Polity Press, 1994) pp. 13–29. For a discussion of the legal profession and ethics see D. Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ, Princeton University Press, 1988).
- 70% noted this option as opposed to 62% of trainees.
- Pearson's chi-square test, used throughout to test relationships between variables. 56% vs. 42%,?2 = 4.404, p = 0.036.
- Women were significantly more likely to consider law clinics held within the firm as pro bono work: 43% vs. 26%,?2 = 6.463, p = 0.011. Men were significantly more likely than women to consider “other” activities within the heading of pro bono services: 56% vs. 42%,?2 = 4.404, p = 0.036.
- J. Jenkins, Law Society Omnibus Survey 2: Report 5: Pro bono Activities Conducted by Private Practice Solicitors (London: The Law Society, 1997).
- The solicitors and barristers acting for pensioners bringing an action against the National Grid were reported in the Guardian to have given £200,000 free advice and representation. “'Mean’ Lawyers Not Guilty” The Guardian 6 April 1999. See also Boon & Abbey “Moral Agendas: Pro bono Publico in Large Law Firms in the UK” 60 Modern Law Review 630.
- The survey indicated that 38% of respondents (n=83) claimed to carry out pro bono work, 60% (n=130) expressly stated that they did no pro bono work and 2% (n=4) did not indicate either stance. Direct comparisons with other jurisdictions are difficult to make due to different professional policies on pro bono and also different recording mechanisms.
- On 29 April 1999 Lord Phillips of Sudbury asked Her Majesty's Government “whether they will give legal staff in government service the opportunity to undertake pro bono work during the course of their employment...” Hansard HL 2026 Written Answers. The Lord Chancellor replied that he encouraged “any member of the Government Legal Service who wishes to participate in pro bono work in their own time, to do so”. However, he noted that lawyers would also be bound by the Civil Service Code and the Civil Service Management Code whilst undertaking this work, as they were public servants employed to advise the government.
- Respondents could choose any number of reasons from the following options: commitment to the community; client contact; personal development; instructed to do so by their firm; “other”. 27% gave other reasons. The four most frequently expressed were: commitment to the firm (n=5); able to develop new skills (n=2); as a perk for important or existing clients (n=2); make up the difference where legal aid won't cover the full costs of the case, but it is necessary to do more work to safeguard the client's interests (n=2).
- Although it was unclear from the response whether there was an advertising gain for the firm, the full text of the comment suggested that this was not the case.
- See the section below on Individuals' Attitudes to Pro bono Work for further detail.
- 63% vs. 33%,?2 = 7.615, p = 0.006.
- χ2 = 4.270, p = 0.039.
- They could choose any number of reasons from a list of options: not interested; discouraged from doing so by the firm; do not know how to proceed, never considered it; do not have the time; other reason. Only eleven per cent (n=14) were not interested in carrying out pro bono. The gender divide was stark: only three per cent (n=2) of women who did not pro bono claimed that they had no interest in doing so as opposed to twenty-one per cent (n=12) of men.
- Nine other reasons for not undertaking pro bono work were voiced on more than one occasion, the most frequent being: No opportunity to do so at my present firm/no firm policy (n=13), Specialise in an area of work that does not lend itself to pro bono clients i.e. corporate or residential conveyancing (n=6).
- Just over a third did not know how to proceed with their wish to do pro bono (thirty-five per cent, n=45), and twenty-one per cent (n=28) had never even considered it. The United States experience shows that there has been an increase in the number of law firms with formal written pro bono policies (three-quarters of large law firms according to their survey) and that this may have gone some way to raising awareness of pro bono within firms. The Law Firm Pro bono Guide—The Law Firm Pro bono Project, (Washington D.C.: The Pro bono Institute 1999) at 1.
- Commercial practitioners outside London did not know how to go about providing pro bono services and were under time pressure. In-house lawyers and West End commercial solicitors require further guidance. In particular in-house lawyers were unsure whether they are permitted by their employer and the Law Society to carry out pro bono and whether their professional indemnity insurance covers their practice in this respect.
- See R. Moorhead, Stress: A Business Case for Quality of Life in the Legal Profession. (London: Young Solicitors Group, 1998) for more information on stress factors in the young profession.
- 58% vs. 40% of men,?2 = 3.780, p = 0.038.
- Respondents could choose any number of the following: in the office; at a law centre; at a CAB or other advice agency; as part of a law courts duty scheme; “other”.
- Pro bono work is also carried out in schools (n=2), at the clients' own premises (n=1), at solicitors' homes (n=3), magistrates' courts (n=1), universities (n=1), charitable organisations (n=2), local shopping centres (n=1), in the community (n=1) and through help-lines (n=2).
- Much of the work is also supervised, suggesting a degree of support from colleagues in the firm (62% supervised).
- 32% (n=15) of women who answered the question spent 5 hours or more per month on pro bono compared with 19% (n=6) of men. Twice as many women as men spent more than 10 hours a month on pro bono work (twelve per cent, n=6 vs. six per cent n=2). The sample sizes are, however, small and should be considered as illustrative of difference rather than proof of it.
- χ2=10.862, p=0.004.
- This was not broken down by debt advice or debt collection and, therefore, could cover very different types of work.
- The College of Law's free advice centre reported that the bulk of its cases, during the first 6 months of providing the service, were consumer issues (n=16), property disputes (n=9) and employment problems (n=5), rather than the high levels of debt, welfare and housing work provided by the young profession on this survey's figures. See Grania Langdon-Down, “Apprentices Take up the Case” The Times 11 July 2000.
- The survey did not reveal whether the pro bono service offered to clients is complementary to any legal advice and assistance to which they may be entitled (for example free representation at tribunals for which legal aid will not be given) or whether clients were accessing pro bono services in preference to or in the absence of legal aid services.
- The list of subject areas stated in the questionnaire was: benefits/welfare, charity, company/commercial, criminal, debt, employment, family, housing, immigration, personal injury, property, other.
- Having said that, the American Bar Association does run a pro bono business law service for clients who otherwise would not be able to afford legal assistance, suggesting that there must be a need for such work. This resource is aimed at people and organisations of limited means, individuals who wish to establish non-profit making organisations to help this group of people and who cannot afford fees, and for charitable, religious, civic, community, governmental and educational organisations who would have their economic resources significantly reduced if they were required to pay legal fees. A Business Commitment (ABA) Project, summary to be found at the ABA's website at http://www.abanet.org/buslaw/probono/abcprogram.html.
- This concern has been expressed elsewhere. See for example “Counting the Cost of Conscience”, The Guardian 23 January 1999.
- Respondents were asked to choose the option which best described their firm's attitude from the following list: decision is left to individual's own choice; partner approval is required; pro bono work is actively encouraged by the partnership; it is mandatory to undertake some pro bono work; the firm discourages pro bono work.
- Once again these differences are subject to the caveat that they are based on small sample sizes.
- This was also found to be the case in research conducted in the USA by Galanter and Palay, “Large Law Firms” supra n. 2 at p. 46.
- The young profession was asked to classify its attitudes on a scale of 1 to 5—ranging from strong agreement at 1 to strong disagreement at 5.
- Only 4% (n =10) disagreed or strongly disagreed and 8% (n =17) were ambivalent.
- There are question marks over the quality of the service that is provided to pro bono clients, albeit in general terms and in part as a function of the lack of a clear pro bono evaluation framework. See the section on Lack of Normative Standards, Pro bono in the 1990s, The Uncertain Future of Attorney Volunteerism, Esther F. Lardent, Pro bono Institute President, Paper presented at the Conference on Access to Justice in the 1990s sponsored by the American Bar Association Consortium on Legal Services and the Public and Tulane Law School, May 1989.
- Although these clients were presumably on low incomes, who required social welfare advice.
- The Lord Chancellor's Advisory Committee on Legal Education and Conduct First Report on Legal Education and Training (London: ACLEC 1996) at 85–97.
- Voluntas, the pro bono organisation of the Victoria Law Foundation, is actively lobbying for pro bono pub-lico to be included in the law school curriculum and aims to promote professional development for those wishing to provide pro bono work. See Objectives and Strategies 1999/2000. (Melbourne, Australia, Voluntas, Victoria Law Foundation, 1999).
- Almost two-thirds of all law firms responding to The Law Firm Pro bono Project Survey, supra. n. 7 in the United States claimed that they provided some form of recognition to attorneys in their firms for their pro bono work.
- This replicates Boon and Whyte's findings on the need for recognition by the solicitor's firm, supra n. 2 at 173.
- Once again, this accords with US large law firm findings whereby there is increasing recognition of pro bono work, to the extent that it is accorded equal status in terms of billable hours as full fee-paying work. See The Law Firm Pro bono Project Guide supra n. 7 at 4. Also borne out by Boon and Whyte's findings that suggested that progressive commercial firms were providing pro bono leadership by senior staff supra n. 2 at 173.
- “Hard Labour?” The Times, 7 November 1995 at 35. This is not just a concern expressed by commentators on English pro bono and legal aid debates. The nexus between increasing pro bono and decreasing legal aid provision was also denied by the Attorney-General of Australia in his opening address “For the Public Good: The First National Pro bono Law Conference” 4 August 2000, Canberra, Australia. See also Lord Phillips of Sudbury's question to Her Majesty's Government “... whether they [the Government] will take into account the pro bono activities of firms of solicitors in the private sector when selecting them for government work”. The Lord Chancellor replied that the government, whilst following public purchasing criteria based on value for money, may consider pro bono work relevant in assessing the value and expertise that the firm may profess to have. Hansard HL 2026 Written Answer 29 April 1999.
- For a discussion of the pro bono tradition and its roots, see further Boon and Whyte, supra n.2.
- 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.
- See further D. Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press 1988). See also Esther F. Lardent, The Case Against: Just Say No... To Mandatory Pro bono, The American Lawyer Pro bono Guide Issue (American Lawyer Media, 1996).
- T. Goriely, supra n.53.
- See J. Scott, Corporations, Classes and Capitalism (London, Hutchinson, 1979).
- Peta Sweet, founding director of the Solicitors Pro bono Group, “Doing Good to do Better” The Times 28 March 2000.
- Law students are being heralded as the new pro bono activists with programmes such as the College of Law's free advice centre attracting substantial numbers of legal practice course students. This service is, however, billed as a legal education tool that has the benefit of providing a service to the public, rather than a pro bono service that also serves an educational need. See also Danny Lee, “ ‘Mean’ Lawyers Not Guilty”, The Guardian 6 April 1999.
- This view was expressed as part of the TSG/YSG study discussed in more detail above. Indeed, pro bono is being sold as a way of introducing young solicitors to their ethical professional responsibilities, whilst sidestepping the question as to whether those in more senior positions should be required to live up to those professional standards in equal measure. See, for example, the Attorney-General of Australia's opening address to the First National Pro bono Law Conference, supra n.51, in which he states “16. Pro bono work is also integral to the legal profession—not only as a demonstration of its commitment to the community but also as a means of nurturing a sense of social and professional responsibility in young lawyers.”
Legal Ethics
Volume 3, 2000 - Issue 2