While fundraising is critical to supporting pro bono projects, there are concerns the legal sector isn’t capitalising on available resources and is failing to make full and proper use of the supporting legislative framework.
In a post-LASPO legal environment, failure to take advantage of every source of funds places projects at risk and could lead to thousands of people being left without legal redress. The Bar Pro Bono Unit is preparing for a steep escalation of applications in April 2013 and estimates 650,000 people are likely to be affected by the reforms.
A decade of growth
The past ten years has seen the pro bono sector develop from a group of largely independent charitable bodies into a cohesive community, underpinned by legislation and shared supporting bodies. This has paved the way for section 194 of the Legal Services Act 2007, enabling equivalent costs to be recovered in civil cases where the successful party is represented pro bono, and creating the unprecedented opportunity of allowing successful pro bono cases to fund future work.
Making charity pay
With the Access to Justice Foundation created to receive and distribute pro bono costs, it appeared pro bono had been given a reprieve—a source of funding that would free the sector from total dependence on charitable donations. However, despite the efficient running of the Foundation, the amount of money raised from pro bono costs orders has yet to achieve its full potential.
In the year following the introduction of the Legal Services Act only three pro bono costs orders were passed down. Although this has increased year-on-year, the amounts raised barely scratch the surface of the needs of the pro bono sector. In 2011 pro bono costs orders raised around £56,000, whereas the annual running costs of the Bar Pro Bono Unit alone are in excess of £300,000.
A lack of awareness has been blamed for the slow uptake of pro bono costs in the years following their introduction. However, with the inclusion of pro bono costs on the mandatory civil induction, the Judicial College has made real progress in encouraging their use. The other side of the Bench has also taken steps to ensure pro bono costs orders continue to grow—barristers receiving instructions from the Bar Pro Bono Unit are given information about how to pursue costs, and do so fearlessly.
Facing the challenges ahead
Although strengthened through legislation and made more efficient by a coherent organisational structure, pro bono still faces a number of significant challenges, and is simply not capable of filling the gap of a vastly reduced legal aid system. Michael Reed, Principal Legal Officer (Employment) at the Free Representation Unit, praises the ethos but points out that the combined efforts of pro bono organisations fails to make a significant contribution to access to justice in the UK.
Although the Bar will not be able to absorb the huge demand for work, greater engagement at all levels of the Bar, coupled with continued lobbying for the future of legal aid, has the potential to change the lives of thousands of people.
It is essential the Bar Pro Bono Unit has a variety of counsel willing to offer their expertise. The range of projects is almost limitless, from special educational needs and social security, to deaths in custody and discrimination. With only a small commitment (a minimum of three days a year), counsel from all practice areas, not simply those traditionally associated with pro bono, can provide a pool of expertise that would ensure coverage of the diverse pro bono landscape.
The work is not limited to advocacy and case work. The Bar Pro Bono Unit also runs Bar in the Community, which provides barristers and other legally skilled individuals with an opportunity to use their skills for the benefit of the community, whilst not giving legal advice. Whether acting as a trustee to a charity or mentoring other projects, all counsel have the ability to assist in some way.
Although the Bar Pro Bono Unit seeks to match cases to the particular expertise of each counsel, involvement in pro bono need not be a passive continuation of daily practice. Many organisations, like Just for Kids Law and Shelter, have run courses to assist those wishing to help. Refreshing old skills and developing new are further benefits of becoming involved.
In an increasingly competitive legal market it is essential the Bar ensures the highest quality of advocate from pupils to QCs. Pro bono projects allow students to develop advocacy and case management skills prior to pupillage. Chambers should have policies in place to encourage members to take on such work, not only as part of their professional development, but to ensure the Bar remains at the forefront of legal protection and the promotion of the rule of law.
The recent Legal Education and Training Review has placed legal education in the spotlight, with many calling for changes in the focus of legal education. Currently only one Bar Professional Training Course provider includes pro bono costs on the curriculum. Although the Bar Standards Board Education team has agreed to raise the issue with the members of the Education and Training Committee, it is imperative the next generation of barristers are ready to engage with pro bono at the earliest stage.
The next decade of pro bono
The legal sector is in a state of flux. Cuts to legal aid, direct access, and increased competition are presenting challenges to all areas of the Bar. Regardless of change within the system, the remaining depressing constant is the need for those without sufficient means to find legal redress. It is a lot to ask members of the Bar to go even further in helping those who cannot help themselves, but it is imperative that pro bono work does not become another austerity cut.
The recent Bar Pro Bono Awards highlight the amazing work carried out by members of the Bar. This year’s winner, Alison Gurden of 1 Gray’s Inn Square, said that “for me and my colleagues, pro bono work is simply part of being a lawyer and in these difficult economic times the general public and society have never needed the Bar more”.
The Bar did not create the crisis, but it is best-placed to provide relief for the worst hit areas. Armed with robust legislation, increased judicial engagement, and greater understanding amongst practitioners, the Bar can help prevent the crisis turning into a catastrophe and can provide relief, whilst the campaign at policy level continues.
Guy Skelton, Senior Editor, LexisNexis