Recession and budget cuts setting new challenges for the advice community

Demand for pro bono legal advice greater than ever as law centres face unprecedented pressure

The combined effect of the recession and the withdrawal of legal aid have strained the delivery of pro bono services even in comparatively well-resourced areas such as London. It has led to tensions between the publicly funded sector and the pro bono community, with some in the former accusing the latter of playing into the hands of a government intent on slashing the legal aid bill.

Senior figures have also been at pains to say that pro bono was not a substitute for legal aid and that the two were not in conflict. Attorney general Dominic Grieve QC has been providing regular assurances that, as the government member taking the lead on pro bono, he did not believe it would ever replace legal aid - his comments have often been met with scepticism. But with the legal aid reforms now in force, these differences have ebbed into the background and the stakes are being realigned along more pragmatic lines.

Toynbee Hall, which celebrated the 115th anniversary of its free legal advice centre last week, offers a prime example of how the not-for-profit legal advice sector is responding to these new challenges. Toynbee Hall once had a clutch of legal aid contracts. It only had one, in welfare, after the last round, and will not reapply. Instead, like many non-legal charities, it intends to develop its fundraising activity alongside the more traditional volunteering awareness campaign among law firms.

Legal advice centres can no longer just go to local firms asking for volunteers and cash. They have to show they can run an efficient service that meets local needs, and that they operate on a sound financial basis.

Charging for advice

Toynbee is perhaps slightly ahead. The charity hires out its Arts & Craft eponymous hall for weddings and other occasions, generating a reasonable income stream. And it does not usually take on volunteers unless their law firm is also prepared to contribute financially to the running of the centre. It may look counterproductive at first but ensures complete and long-term buy-in from firms. And as in most legal advice centres around the country, there is no longer a philosophical objection to charging for services - although they are yet to figure out how they can work this out without cutting off potential clients.

At an average hourly cost of £17 per client, Toynbee Hall is already running a pretty tight ship. This year, they are expecting to advise 4,000 clients. They estimate that number will rise to 4,500 in 2014 as the legal aid cuts start to bite. Replicate this trend around the country and suddenly the power of pro bono, but also its role, is becoming more acute. In fact LawWorks' latest survey suggests that both demand and supply will grow in the next three years.

Sir Nicolas Bratza QC, former British judge and president of the European Court of Human Rights, volunteered at Toynbee Hall for 17 years. He was back in East London with a short talk at the event marking the hall's anniversary, in which he warned about the dangers legal aid cuts posed to access to justice. As a young advocate, he was trained to expect that legal aid would continue to expand, but this was no longer the case. The hall, he said had "defied the belief that the growth of legal aid since 1949 would reduce the need for free legal advice. Giving people legal rights was not the same as giving them the means to protect these rights, and the latest legal aid reforms will reduce access to justice further."

Grieve, whose father was a Toynbee Hall volunteer, also spoke that evening, praising pro bono lawyers as "an extraordinary movement". And it wasn't just City firms but many lawyers in smaller firms who had contributed, "usually in an unsung way". The attorney general didn't develop the point further and later recommended that the sector - with the government's assistance - should consider developing public legal education initiatives as a means of preventing legal problems from arising and therefore easing the burden on legal advice centres. It was also mentioned by several respondents to LawWorks' latest annual survey.

But concerns over low levels of involvement on the part of medium-size firms compared with their City brethren was highlighted by LawWorks chief executive Rebecca Hilsenrath as she unveiled the results of her organisation's survey results.

Of the 192 respondents, more than half were in London - with the assumption that they were either large or niche firms. Sole practitioners represented 13 per cent of respondents; 2-10 partner firms, 42 per cent; and large firms (+81 partners), just over 20 per cent. Medium-size firms represented a mere 25 per cent. These are not large City firms but sizeable enough that they have the manpower and cash to support the pro bono effort. But somehow, at present, they do not see it as relevant. This, perhaps, is the greatest challenge for pro bono in the coming years.

 

KEEPING PRO BONO VOLUNTARY For all the difficulties in funding and engaging lawyers in pro bono work, few in the sector believe it should be made mandatory. There is emerging support for a model where only firms over a particular turnover could be forced to contribute to the pro bono effort, but this is yet to gain traction widely. LawWorks latest survey results suggest that there is "very limited appetite" for compulsory pro bono to be introduced. It looked at jurisdictions where pro bono is built into the system but not mandatory. Australia, for instance, where there are nation-wide "aspirational targets" and where firms bidding for government work must commit to delivering a certain amount of pro bono as part of their contract. The survey also cites Australian research which shows a correlation between higher numbers of pro bono hours and commitment to the aspirationaltarget, but that it remains "challenging to prove causation". Dominic Grieve said "the principle should be preserved that pro bono should remain a voluntary activity". The attorney general said Britain should consider alternative models in other jurisdictions instead, such as Australia and, more recently in the US, where there were "very developed pro bono networks". A Strasbourg case involving an Icelandic lawyer, mentioned by Sir Nicolas Bratza, suggests that the European Court of Human Rights might not regard such an imposition entirelyfavourably.

 

ENGAGING ALL FIRMS "It's difficult to talk about pro bono in general terms because what happens in the biggest firms is so different from outside London. Question one is partner involvement. A huge amount happens at partner level. Getting sole practitioners to engage and deliver is less of a challenge, unlike the largest firms, where securing engagement at senior levels can be more difficult." Equally, Hilsenrath says, getting engagement at junior level is much easier, particularly as most law schools now build pro bono into the curriculum or even have their own clinics. But the real challenge, she continues, is getting both the individuals and their firms to engage. When thinking about pro bono, she says, "the risk is to conflate what motivates the individual with why the firm would support it. Individuals who do pro bono are motivated by an interest in giving back. But whether they do depends on whether their firm can provide leadership and role models. "In small firms, pro bono is delivered as an adjunct to the day job - not in big firms. In big firms, successful pro bono programmes will see casework taken through the firm during working hours like any other firms - although sometimes they hold clinics that are mostly in the evening. The trouble is, however much you want to give back, if you're a busy lawyer and you're told you can only do it in the evening or Sundays, it's less likely to happen." Rebecca Hilsenrath is chief executive of LawWorks