Pro bono: Lawyers taking care
The SQE will cause turbulence in the education sphere, but it may also assist the public, writes Denise Farran
The profession is well aware of the rising number of lawyers taking part in pro bono activity. This was highlighted during National Pro Bono Week last November. Cuts in legal aid, law centres, law firms closing down, and the enduring economic consequences of the 2008 recession have led to a rise in litigants in person. In order to plug the lacuna in professional expertise, the response from the profession is laudable.
Another injection into the pro bono market is coming from universities. Legal education is experiencing an unprecedented reform. The transition from public funding to private funding has been painful for those of us involved in legal education. The recent Solicitors Regulation Authority proposals to amend legal training with the implementation of the solicitors qualification exam will also cause turbulence in the education sphere should they come into fruition. As a result of these events, competition has been heightened in the higher education sector.
To attract students – the brightest and the best as well as the less able – the legal education industry is looking at how to improve the courses and opportunities offered to students. The setting up of legal advice centres, offering pro bono legal assistance to the general public, is on the up at universities and this provision is still in the early stages of evolution.
The advantages to all are clear. To members of the public who cannot afford to see a lawyer, free assistance is given. To our students, practical experience of legal cases is given and a more detailed understanding of the law is gained. This will not only assist them in the passing of exams but provide a more grounded experience to make future career choices and to appear more attractive to future employers: a win-win situation.
However, our students need supervision from qualified lawyers, either from university staff or in partnership with professional lawyers acting in a pro bono capacity. As professional lawyers, a high duty of care is owed when giving legal advice, irrespective of payment.
The problem for lawyers is that they will not be completely in control of the case; the whole point is to let students practise the law. Therefore, care needs to be taken in how practitioners protect their own professional standing in the face of the possible negligence of others involved in the case. This same point applies to pro bono legal work in all cases where the lawyer does not have sole care of the case throughout.
This issue is related to the debate around the unbundling of professional services. The traditional retainer between client and solicitor covers the whole of the case. However, the profession is experimenting with retainers providing fixed services in some legal areas. The Law Society issued a practice note on 4 April 2016 in relation to unbundling civil legal services.
To protect their own position, lawyers must be very careful about the terms of the contract they agree to when providing services on a pro bono basis. It is vital to ascertain where their own professional involvement and liability begins and ends, and also that they are fully insured. However, being able to demark this line is going to occasionally be difficult in practice. Our students must also be fully insured and offered high standards of supervision. They are often inexperienced and vulnerable as their skills are just developing.
There was publicity in October last year regarding the McKenzie friend David Bright. The press reported he was being sued for negligence by his disgruntled client. Given the lamentable cuts in legal aid, it is anticipated that there will be more use of McKenzie friends, many of whom will act on a pro bono basis. While there are many noble reasons to do pro bono work, the profession also needs to be aware of the risks involved and take action to protect their own position and that of our students.
Denise Farran is a senior lecturer in law at Manchester Metropolitan University