Lawyers must promote pro bono and public legal education

At a time when renewed funding for legal aid is but a pipe dream, and as further cuts to local authorities prove a nightmare for the voluntary sector, barrister Alex Chalk MP believes a US-style pro bono model and an online legal rights hub can help secure access to justice. But, as he tells Solicitors Journal, lawyers must take the lead, independently of central government.

The Conservative MP, 6KBW College Hill barrister, and chair of the all-party parliamentary group on pro bono highlights the work of hundreds of attorneys who spontaneously descended on US airports in the immediate aftermath of President Donald Trump’s executive order barring entry to migrants from seven majority-Muslim countries.

Attorneys from Hogan Lovells, Paul Weiss Rifkind Wharton & Garrison, Kirkland & Ellis, and even Trump’s personal law firm Morgan Lewis & Bockius were among a throng of lawyers who provided free legal support to those affected by the president’s widely criticised immigration ban. And it was the way in which the US Bar rallied together, independently of state or regulatory intervention, that Chalk thinks solicitors and barristers can learn from.

‘There are ways that pro bono can achieve a further reach, whether it’s clinics at law schools or copying the US model of having lawyers do work in US airports,’ says Chalk. ‘I’m not in favour of the state weighing in and requiring firms to offer pro bono but it is something that culturally the legal world should aspire to do more of. And the state, if it has a role, should be assisting that voluntary element to go far as it can. It should be about encouragement and facilitation, not compulsion.’

While the American Bar Association encourages its practising lawyers to contribute at least 50 hours of pro bono advice per year to those unable to pay, some local Bars are more prescriptive. The New York and California Bars, for example, require their entrants to meet a minimum 50-hour pro bono target to practise law.

In the UK no threshold exists, although aspiring and practising lawyers are encouraged to participate through various initiatives, including the Law Society’s Pro Bono Charter and Manual and the Bar Pro Bono Board. In 2015, solicitors in England and Wales gave an estimated 1.4 million hours of voluntary legal advice while more than 3,600 barristers offered help through the Bar Pro Bono Unit. However, Thomson Reuters’ 2016 TrustLaw Index found that in 34 leading law firms, pro bono hours had dropped to an average of 21.6 hours per fee earner, down from 22.5 year-on-year.

‘Pro bono needs to be embedded in the DNA of the Bar and solicitor professions,’ says Chalk. ‘To that extent it ought to have a profile right from the moment people consider embarking upon this career because it is a vitally important part of what it is to be a modern lawyer.’ However, the justice select committee member adds that it is ‘absolutely vital to restate that pro bono is an adjunct to, and not a substitute for, legal aid’, and calls on the government to ensure legal aid is adequately resourced.

A career at the Bar has proved ‘hugely valuable’ in understanding the role pro bono can play in improving access to justice, explains Chalk, enabling him to understand the real-life implications for people who can’t obtain access to justice, as well as what it means for legal professionals to give up their time to offer such services.

Chalk praises the ‘fantastic’ pro bono schemes on offer in his Cheltenham constituency but notes the ‘greater regularity’ with which he and other MPs have to point their constituents towards free legal advice, following cuts to legal aid and the advice sector. The situation looks set to worsen, with Gloucester City Council being asked to consider total budget cuts of £1.5m this year, including savings of £145,000 within the voluntary sector.

Gloucester’s Citizens Advice Bureau could lose £31,000 in local funding, while Gloucester Law Centre could see its funding cut by half. Speaking to the Gloucester Review last week, Anne Whitworth, manager of the law centre, called the budget cuts ‘silo thinking’, adding that ‘supporting people early on in their times of crisis will significantly impact on statutory bodies who will end up paying out more when the issues we deal with daily get picked up much later down the line’.

Chalk, also the vice-chair of the APPG on public legal education, describes how, in light of funding cuts, there is a need for greater public awareness of legal rights. To that end he proposes an online information hub for just this purpose. ‘At the moment, it seems that despite the fantastic work being done by a large number of organisations, there is still a gap that needs filling. Wouldn’t it be good if there was something similar to the .gov.uk website for legal rights, set out in a way that is independent of government but in a way that people thought was transparent and authoritative?

‘That could plug a real gap and be hugely beneficial and suitable given that we always have to be mindful that sometimes people will be seeking to assert their rights against the government or local authority.’ When asked where the resources would come to achieve this, Chalk responds: ‘There may well be a role for some government funding but the impetus ought to come from the legal sector.’

The Tory backbencher also calls on lawyers to do more to promote public legal education in schools – an experience he found ‘so worthwhile’ when in practice. ‘Before I came to parliament I spent a lot of time going to schools, doing mock trials, trying to dispel some of the mystique about the law, and encouraging people to consider it as a career option. It’s important to recognise the vast amount of work that is done. I would invite firms to do more of that and if some thought could be given to creating and maintaining resources online which are accessible to people, that would be a welcome step too.’

Justice comes first

In 2016, Gloucestershire was dealt a blow when both Gloucester and Stroud magistrates’ courts were closed as part of the Ministry of Justice’s plans to fund court modernisation. Cheltenham Magistrates’ Court now covers the whole of the county, forcing some witnesses to travel much further than before.

Chalk is ‘reasonably confident’ the digital court process will work but expresses concerns over ensuring proper facilities to enable a video link, secure docks, and retaining the dignity of the court ‘to ensure justice doesn’t fall into disrepute’. The barrister has visited Cheltenham Mags’ where, he says, practitioners spoke positively about the new digital case system.

‘The initial signs are quite promising,’ he adds, before explaining his own first-hand knowledge of the new system. ‘I did an attempted murder case in Stafford Crown Court and I looked at the digital case system and was hugely impressed by it. There’s no doubt it was a vast improvement on the paper-based system. At the moment I’m cautiously optimistic about how it’s going to work out.’

While Chalk seems hopeful about where the savings made by court closures are heading, he is less positive about increased court fees propping up the justice system. ‘I can just about tolerate court fees rising in the commercial court to cross-subsidise the family court or other areas of the justice system if that’s what’s required to properly resource the system,’ he says.

‘The absolute core principle, however, must be that access to justice comes first. It would be completely unacceptable for fees in one sector of the justice system to be inflated to a point where it impacted unacceptably on access to justice purely as a way of subsidising other areas of the justice system.’

Employment tribunal fees, which can cost an applicant up to £1,200, are a prime example of how the government’s policy of making court users pay for the privilege of bringing a claim has impacted access to justice. Last week the MoJ published its long-awaited review of the regime and conceded the fees have discouraged people from bringing claims, but stopped short of admitting the regime prevented claims being brought. The ministry is now consulting on widening access to its fee remission scheme, which has seen a marked rise in grants since being introduced in July 2013.

‘I welcome the government’s frank acknowledgement that the fall in claims has been significantly greater than was estimated when the fees were first introduced. And that the government has rightly recognised that the evidence shows fees have discouraged some people from bringing proceedings,’ remarks Chalk.

‘The real question now is whether there are sufficient safeguards in place to make sure fees do not prevent people from bringing claims. I welcome that the government has agreed to consult on proposals for an adjustment to the “help with fees” scheme to extend the scope of support available to people on lower incomes.’

Improving awareness

Looking ahead, Chalk says one of his biggest challenges is improving awareness of issues affecting the legal services sector, including pro bono, among his parliamentary colleagues.

‘Law is not particularly high profile in the grand scheme of things, I’m sorry to say. Health, education, terrorism, and international affairs will usually trump legal issues. You have to try to ensure the sector and its value is not forgotten. I do feel that quite a lot of it is taken for granted. A lot of MPs are, quite understandably, not as familiar with the legal world, or with pro bono resources, as they might be so it’s partly trying to address that.’

Chalk, who describes himself as a workaholic, is unequivocally passionate about increasing access to justice through the profession’s greater participation in pro bono and legal education. Fellow lawyers and parliamentarians may echo his sentiments but the question remains as to whether they will subscribe to his methods.

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress