Pro bono: Making better lawyers
Yasmin Waljee OBE and Michael Davison explain to Laura Clenshaw the importance of a pro bono culture in firms - but stress why free advice will never replace a properly funded legal aid system
'This new power, which has proved itself to be such a terrifying weapon of destruction, is harnessed for the first time for the common good of our community,' remarked Her Majesty the Queen when she presided over the opening of the world's first full-scale nuclear power station at Calder Hall in Cumberland in October 1956.
Just three weeks earlier in Maralinga, a remote and desolate area of South Australia, the UK government began four very different attempts at harnessing the unruly and destructive power under Operation Buffalo, just one of a number of nuclear tests the government would undertake in Australia and the Pacific Ocean between 1952 and 1958 as the Cold War arms race heated up in earnest.
Calder Hall closed in 2003 after celebrating a 47-year lifespan, two decades longer than it was expected to endure. In the Pacific and Australian regions, the estimated 22,000 British servicemen exposed to nuclear fallout were not so fortunate.
A significant number of servicemen died before reaching average life expectancy due to over-exposure to ionising radiation. Many others became severely disabled with various diseases including a number of solid and haematological cancers. With the UK government still refusing to offer presumptive compensation to veterans who served during the British Nuclear Test Programme - the only jurisdiction to do so - survivors suffering from chronic ill health have been forced to fight long and hard to receive war pensions.
Between 2006 and 2009, 12 ex-servicemen -
or their widows or estates - present at Operation Buffalo or at Operation Grapple on Christmas Island applied for a service pension, arguing that their disablements were caused by exposure to ionising radiation during their military service:
the veterans were not given protective clothing, despite being allowed to play cricket at ground zero, swim in irradiated lagoons, and eat contaminated fish. Their claims, made under the Naval, Military and Air Forces (Disablement and Death) Service Pension Order 2006 were refused either in whole or part by the Service Personnel and Veterans Agency (SPVA). They appealed.
The case is a whirlwind of litigation, involving swathes of expert evidence and the Ministry of Defence's seemingly limitless legal resources. To make matters worse for the claimants, legal aid is not available for cases before the War Pensions Tribunal. In 2012, at the request of the Royal British Legion (RBL), who represent the appellants failed by the SPVA, heavyweight law firm Hogan Lovells - more commonly recognised for multi-national corporate practices - intervened. The global firm has since spent four years and £2.3m on the case - during which time five of its clients have died - but has done so pro bono.
'You've got a partner on it, you've got at least two senior associates, all the expert evidence that has to be trawled through, and witnesses. The liaison with the actual client is done through the RBL, so that helps out to some extent, but the legal work involved is significant - just getting to grips with the sheer complexity of the material,' says Yasmin Waljee OBE, Hogan Lovells's international pro bono director since 1997.
Waljee is a major league player in promoting
a pro bono culture in the City-based firm. Along with the OBE she received in 2010 for helping disadvantaged young Muslims, she sits on the advisory panel to the UK's Independent Anti-Slavery Commissioner and is a member of the British Council's Society Advisory Group. Though her appointment back in the 90s was a first-of-its-kind role in Europe, today pro bono is a serious operation for many UK firms, where it has become engrained in their corporate social responsibility programmes.
Findings from the Thomson Reuters Foundation's 2014 TrustLaw Index of Pro Bono reported all respondent firms had a pro bono coordinator in place, 88 per cent had a pro bono committee, and 85 per cent factor pro bono into compensation for lawyers (however, this dropped to 62 per cent in terms of compensation for partners). With such a culture imbedded into many of the country's elite firms, the hostile reaction from lawyers in 2015 to the Lord Chancellor's suggestion that pro bono could plug the legal aid gap came as no surprise. Renowned legal commentator and Preiskel and Co partner David Allen Green pointed out the blindingly obvious - to all but Michael Gove it seemed - when he said that a City lawyer cannot execute tenancy or adoption work, but they can do a securitisation bond.
Waljee argues the same point: 'There's a mismatch of skills - you need the legal aid sector providing the very difficult things on mental health work, or family, or all those types of issues that we just don't have experience of. Geographically it doesn't work - you've got a lot of lawyers in London who are doing good work but nationally it's very difficult; it's very difficult to do the work in Wales compared to London.'
Where Hogan Lovells has found a complimentary partnership of skills and legal need is with the RBL, however, which, Waljee explains, has a whole host of complex issues to deal with: 'So, actually, as litigators, we have something enormous to contribute.'
Labyrinth of litigation
The Christmas Island and Maralinga appeals are but one such example where legal aid restrictions meet with vulnerable individuals and a labyrinth of litigation. Another such case involved the widely reported military helicopter crash in Afghanistan in 2014, in which five service personnel were killed.
'When there's state involvement - like here with the Ministry of Defence (MoD) - then we get issues of European law involved, too, because the state is subject to the European Convention on Human Rights,' says Michael Davison, head of Hogan Lovells's litigation, arbitration, and employment practice. Davison acted for the three flight passengers, Flight Lieutenant Rakesh Chauhan, Corporal James Walters, and Lance Corporal Oliver Thomas, at the inquest into the soldiers' deaths.
'The big issue was that the MoD resisted disclosing the cockpit voice recorder of the helicopter that crashed. What the pilots were saying to each other in the run-up to the crash was quite significant, but the MoD resisted disclosing that for a variety of reasons. We petitioned hard and made advocations to the coroner to have the cockpit voice recorder
During the inquest, the legal representatives questioned aspects of the service inquiry report, which was carried out by the Special Investigation Branch. In particular, there were questions as to whether the personnel were carrying out a stunt to experience weightlessness in mid-air - a cause of the crash dismissed at inquest, following Davison's and the RBL's campaign to listen to
'The coroner found that, actually, the people who were at the controls of the helicopter had suffered from cumulative fatigue - they'd just been asked to do too much for too long. They were exhausted and made a dreadful mistake,' explains Davison.
'There have been recommendations to the MoD - there's a device in the helicopter, which tells you when you go below a certain height, but these pilots weren't using it properly, so they've rewritten the whole training procedure for that.' Another recommendation made following the findings of the inquest was the installation of a flight data recorder in every military aircraft, to ensure that there is more information available on what causes future crashes.
Davison's profile boasts of a partner who has helped clients avoid litigation for 30 years; work on clandestine arbitration matters in London;
and has acted for investors and governments in various investment treaty cases. The gulf, then, between the somewhat clinical approach to the corporate world of law and the human element involved in working with the RBL must be huge.
'It's quite emotionally draining,' he admits.
'The RBL took me along to an inquest just to watch, and they'd been able to get representation for one person, but the widow was totally unrepresented, and she had the most miserable time. I thought it was horrible for her. I thought that no one should be put through a process like that, just bewildered and confused about what was going on.'
It is clear that Davison's wide-ranging remit
of corporate work, which extends to mining and resources, is not suitable for the most common of legal aid work needed: 'When you think about it, there's so much pro bono work around the criminal justice area, the family law area, immigration, that we could just not do. We just don't have the skills or experience. Legal aid will, hopefully, remain to cover at least some of that, but it shrinks year on year, doesn't it?'
I'm curious to know if Hogan Lovells experiences any commercial benefits to complicated and time-intensive pro bono work with charities such as the RBL; Waljee explains there are, but not any that 'contribute to the bottom line in the sense of bringing in clients'.
'The benefits come from building the lawyer's skills,' she says. 'Michael's young lawyers were handling some really significant project management issues, which they might not otherwise do on major transactions. For us the business benefit comes from the enhancement
of the professional development of the lawyer.'
For Davison, though, it appears his pro bono work creeps into his day job, with clients inquiring about what projects he's working on and asking if they can help. 'There's an indirect benefit in that it helps build how people see us - they see a firm that's committed to pro bono and it's a good thing to be seen as such by significant clients.'
The firm's commitment to pro bono and its extraordinary relationship with the RBL have resulted in real changes for veterans and the families they left behind. Although progress with the test cases for ex-servicemen and the widows of ex-servicemen present at Maralinga and the Pacific is slow, the firm celebrated a small but mighty victory in 2014, when the Upper Tribunal gave a ruling that an incorrect standard of proof - dictated by legislation - had been imposed on soldiers attempting to claim war pensions.
The case has now been remitted to the First-tier Tribunal, to be analysed with reference to the correct standard of proof, but the work already done has redefined how the War Pensions Tribunal should make decisions in relation to veteran's pension claims. The hearing of the First-tier Tribunal is expected to be heard in June or July, and may bring some long-awaited good news for ex-service personnel.
Pro bono has become a well-established part of corporate social responsibility in countries such as the UK, Australia, and the US, though its presence continues to grow at an exponential rate across the globe, hence the newly created TrustLaw Index, which aims to track pro bono activities in law firms on a country-by-country basis.
'Pro bono is part of our profession,' Davison fervently expresses, 'It's part of who we are; it's the right thing to do. It's also incredibly rewarding. The sort of team ethos we have on the inquests has been amazing. Some very junior lawyers have had to deal with some very difficult issues, making submissions to court that they believe passionately in. That brings a layer of intensity to the work we do. It makes us better lawyers.'