Pro bono – what lies ahead in 2015?

Road works2015 looks set to be a critical year for the pro bono movement and its uneasy relationship with legal aid. The well-worn pro bono mantra – that pro bono is “an adjunct to and not a replacement for legal aid” – has been challenged in recent years. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) effectively scrapped public funding for much of social welfare law advice in April 2013 and the legal profession is finally beginning to rethink the formula. Legal aid lawyers are rightly sceptical about ministers trying to co-opt pro bono – but LASPO 2012 is a game-changer.

A sense of perspective is needed. Pro bono provides a tiny but increasingly significant amount of advice in this area. According to LawWorks, there were over 29,000 client enquiries at clinics in the period of April 2013 to March 2014 and almost two-thirds of those enquiries (62%) resulted in the provision of legal advice. To put that into context, those 17,980 clients represented less than 4% of the 460,000 drop in civil legal aid matters post-LASPO 2012.

So how does the pro bono community plan to respond to the cuts? Towards the end of 2013, the justice minister Simon Hughes unveiled a new court support service for litigants in person to be introduced in civil and family cases. The scheme is backed, and will be delivered by, a number of key pro bono groups as part of a £2m funding deal. The scheme will involve the Personal Support Unit (PSU), the Royal Court of Justice’s citizens advice bureau (RCJ Advice), LawWorks as well as the public legal education charity Law for Life.

The idea is for more PSUs in more courts, more LawWorks clinics, phone and email advice to local and regional centres from RCJ Advice plus information from Law for Life. There will be one person in each court to manage the new service and an appointed judge with a responsibility for litigants in person. “The strategy puts the litigant in person at the heart” commented the Attorney General’s Pro Bono Envoy, Michael Napier QC. “The result is to unlock more assistance to the public.”

It sounds like an excellent and unprecedented initiative. Pro bono projects tend to be London-centric for obvious reasons (they are mostly driven by City firms) and this initiative must connect with the regions. A scheme of this scale needs real support, adequate infrastructure and proper oversight. Serious reform of the courts, judiciary as well as legal procedure is what is required to deal with a new generation of unrepresented litigants. Without that being tackled, initiatives like this will be a wholly inadequate response.

A new collaborative plan for pro bono in the UK was launched at national pro bono week in November 2014. “The Plan” (as it is known) currently involves 20 top firms which have committed to ensuring that a proportion of their pro bono work will be directed to promoting access to justice for low-income individuals. The firms include Gump Strauss Hauer & Feld, Allen & Overy, Arnold & Porter, Ashurst, Clifford Chance, Dechert, Dentons, DLA Piper, Freshfields Bruckhaus Deringer, Herbert Smith Freehills, Hogan Lovells, Latham & Watkins, Linklaters, Morgan Lewis, Olswang, Reed Smith, Shearman & Sterling, Simmons & Simmons, Weil Gotshal & Manges and White & Case. It is hoped that more firms will sign up.

The firms have agreed to “support legal aid and promote the importance of a properly funded legal aid system” as well as continue to support advice clinics, create task forces (eg immigration and homelessness) to assess the need for pro bono intervention and handbooks for legal clinics by subject area. The project includes an aspirational hours target and results will be published every year (firms won’t be named).

Freshfields’ head of London pro bono Paul Yates identified key actions that can be undertaken to ensure that the project really is “supporting rather than undermining legal aid”. For example, one idea is to use pro bono schemes to gather data to “strengthen the case for future investment in legal aid”. This is crucial if a coherent argument is to be made for publicly-funded legal advice in the future. In the last few weeks the failure of the government to adequately research the likely impact of the legal aid cuts has been heavily criticised by the National Audit Office and the House of Commons’ public accounts committee. According to the spending watchdog, the £300m cuts to legal aid could not be said to have “delivered better overall value for money for the taxpayer”.

Paul Yates has also said that the scheme will involve training and processes to ensure pro bono lawyers can identify cases that would be eligible for “exceptional case” funding, the safety net provision that allows for legal aid in cases that would breach rights under international law. The Legal Aid Agency planned for between 5,000 and 7,000 applications in 2013/14 – it received just 1,520, of which 69 were granted.

“We are highly sensitive to the fact that we need to be very careful and strategic in the way we provide help in order to avoid the highly misleading impression that pro bono can fill a meaningful part of the access-to-justice gap caused by legal aid cuts” Joanna Clarke, LawWorks Regional Clinics Support Officer, has said. “We simply cannot.”

By Jon Robins

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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