International Legal Forum, St Petersburg, 17 May 2012
John Wotton, president, Law Society of England & Wales
In the UK we have, for many years, had a system of criminal and civil, publicly-funded legal aid, provided by several thousand law firms and barristers across the country. The rates of remuneration are not generous and few firms make an appreciable profit on this work. But, combined with conditional fees for personal injury litigation, the scope of legal aid has allowed most less well-off citizens to obtain legal advice and representation to assert and defend their rights.
This situation is, however, altered by the Legal Aid Sentencing and Punishment of Offenders Act, which passed into law last month.. The consequence of this piece of legislation is that in some very important areas like family, housing, immigration and welfare benefits law, vulnerable members of our society will find legal advice and representation in the courts, funded by legal aid, more difficult to obtain.
The Law Society fought a long campaign against the Bill, believing that it undermined a fundamental principle in our jurisdiction of ensuring access to justice for all. We achieved some notable successes during its progress through parliament, but we cannot pretend that the final Act is the outcome that we hoped for.
The reality is that there will be far less civil legal aid available in England and Wales, with major implications for both legal aid practitioners and their clients. I fear that it is unlikely that many existing civil legal aid firms will be able to continue in their present form. Some firms will close, others will merge and most will be looking for alternative income streams.
Therefore the task that falls upon the Law Society as the solicitors' professional body, working to support the rule of law in England and Wales is twofold: help the profession adapt to the new regime, and do what we can to mitigate the unavoidably negative impacts of the Act on access to justice for the least well off.
That means that we will need to go back to first principles to consider what our clients need, whether lawyers are either necessary or best placed to meet those needs, and how those needs can be funded. We also want to consider how new technology and the development of alternative business structure models (whereby non lawyers can own, invest or manage law firms and form multi-disiplinary partnerships, allowing law firms to provide a broader range of services) may open up new ways for solicitors to meet at least part of our clients' needs in a way that is accessible and affordable.
This includes considering alternative practice models for provision of affordable legal advice such as ABSs and Community Interest Companies (CIC), a type of company designed for social enterprises that want to use their profits and assets for the public good. CICs are intended to be easy to set up, like a company, but with some special features to ensure that its activities are for the benefit of the community.
We will also be looking at alternative methods of service provision such as online services, or providing fixed fee advice on specific elements of a case rather than taking on the entire matter, as well as examining the merits of wider public legal education.
In this climate, a new space is clearly created for the provision of pro bono work. That is work that is undertaken by lawyers voluntarily and without payment, or in some cases, at a reduced fee.
Any talk of pro bono, however, must be framed in terms of the understanding – which is the basis of everything we do – that pro bono should be an adjunct and not a substitute for a properly funded legal aid system.
We do recognise, nevertheless, that pro bono is an important element in the provision of access to justice, with a long and venerable tradition that benefits the public, and the profession.
Specifically, pro bono work is good for solicitors and legal practices because it can develop professional skills and knowledge, build confidence, boost morale, enhance recruitment, aid staff retention and win business from clients who expect their advisers to demonstrate a commitment to society, just as their own organisations do. It can be done by lawyers in private practice and those working in house. More importantly, it helps many people who would otherwise go without representation when their vital interests are at stake.
Research undertaken by the Law Society indicates that, an average of 55 hours pro bono work per solicitor wais undertaken last year. Based on normal charge out rates, that would be valued at £518m - the equivalent of 2.4% of gross fee income. We have not set a target number of pro bono hours for solicitors, though some law firms have done so for their staff and some lawyers who support pro bono would advocate our taking this action.
Because the Law Society is committed to, and believes in the benefit of pro bono work, we have a partnership with, and are the principle funders of LawWorks, the main pro bono ‘clearing house' for solicitors. Undertaking pro bono through a clearing house enables the solicitors to focus specifically on the provision of legal advice to those who most need it, leaving the management of applications for help and expectations to LawWorks.
Having a central co-ordinating body such as LawWorks with established systems and processes also enables innovative and strategic programmes to be developed in addition to emergency responses.
We also support a number of other measures to encourage pro bono work, including providing practising certificates to unemployed solicitors who wish to do pro bono work, in order that they continue to maintain their skills and confidence and keep close to the profession while they are looking for work or who are on a career break. And the we have seen the proportion of law schools offering pro bono opportunities to their students increase to more than two thirds.
We also have a very important role in recognising and promoting the pro bono work of solicitors. Pro Bono features prominently at our national Law Society Excellence Awards recognising the pro bono contributions by individuals, firms and organisations each year. We also co-sponsor National Pro Bono Week with the Bar Council and the Chartered Institute of Legal Executives, so that each November there is a sustained campaign of events and communications to recognise and celebrate the amount of pro bono work by the profession.
However, in the new environment we need to do more and specifically involve more stakeholders, both within the profession and outside, to find new ways of bridging the access to justice gap which has been created by the new Act. So, starting later this month we will start convening a series of debates on the theme of “Protecting Access to Justice in a Post-LASPO World”, bringing together potential funders, voluntary organisations and legal aid lawyers, to find the best and most innovative ways of ensuring that the most vulnerable members of our society are not left unprotected and unrepresented.
Pro bono should not, in a modern, democratic society which values the rule of law, be a replacement for a properly funded legal system. But there should always be a place for the provision of legal skills and services on a pro bono basis to ensure that all members of that society have recourse to the law, should they need it.
Thank you.