Duty of Lawyers to Provide Bro Bono Services

Title: To what extent is there a duty on lawyers in England and Wales to provide pro bono services to those in need? Should this duty be a legal, ethical or personal one?

Introduction

In England and Wales, Pro Bono services is a platform for lawyers to contribute voluntarily to the public. As defined in AllAboutLaw website, pro bono is shortened from the Latin term “pro bono publico”, which means “for the public good.”[1] I agree with the system in England and Wales that gives choices for lawyers in their profession, whether or not to involve themselves in pro bono work. This essay will, firstly, understand the lawyer’s duty in providing pro bono services in England and Wales, and secondly, to consider the type of system which is the best for pro bono work. The three choices i.e. legal, ethical and personal have its own advantages and disadvantages. In my humble view, I have concluded that pro bono like any other type of charity should be made ‘personal’.

Emergence of Pro Bono in England and Wales

It is important to first appreciate the history of pro bono in England and Wales in order to understand the nature of pro bono work. In 1995, wealthy law firms in England and Wales were threatened by Paul Boateng, the Labour Party legal affairs spokesman, with a ‘framework for them’ to make a contribution to ‘the traditional duty and responsibility of lawyers as a profession to the proper and equitable administration of justice’.[2] It takes the meaning that pro bono work would be made a condition of practice.[3] The Law Society then opposed it by establishing a Pro Bono Working Party.[4] It recommended that solicitors should not be subject to a mandatory professional obligation to provide free legal services, stressing that the profession should not restructure or amends, by the provision of free services, the growing legal need created by declining legal aid budgets. They also suggested abandoning the term pro bono publico while in favour of ‘voluntary legal services’. [5] The concept of ‘voluntary legal services’ is still exercised and remains the same today.

Current need of pro bono

In the present day, the access to legal advice and representation have significantly been reduced due to cuts of legal aid, reduced funding for law centres and local advice services. For instance, the major cuts to the legal aid laid out by Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012[6] have led to the lack of legal aid provider, the new legal aid means test[7] introduce a rigid allowance to limit the eligibility for legal aid and the Exceptional Case Funding(ECF) scheme has failed to function as an effective safety net due to unrealistically strict criteria.[8] The needy were left with no other choices in accessing to justice except through pro bono services. This is their only way in accessing to justice regardless of financial abilities. In addition, it has been shown in LawWorks’ Clinics Network Report, that there is an increment of 80% in demand for pro bono advice clinics during the period of April 2016 to March 2017[9]. It is clear to us that the demand for pro bono services is increasing. For this reason, lawyers do have a duty to provide free legal aid to the needy. However, this should not be a legal or ethical duty, because a personal one will be much more suitable and effective.

Rationale of Pro Bono

As Rhode mentioned, the rationale for pro bono work based on two central claims.[10] Firstly, it involves the value to society of addressing unmet legal needs.[11] This is because inadequate legal assistance jeopardizes individual rights[12] and lawyers see the need to provide access of free legal services to those who could not afford it. The second justification involves the value to lawyers, individually and collectively, of such charitable contributions.[13] Providing pro bono services will benefit individual personally and professionally. It was known that regular volunteering is correlated with physical as well as mental health. [14] However, ‘volunteering’ is the one condition to obtain these benefits.

Should it be legal?

If Pro Bono were to be legal, it must have been imposed by law. Pro bono will then be mandatory for all lawyers.

The proponents agree so because the surplus of income after lawyers obtaining professional legal status justifies the obligation of providing pro bono work. It is also a display of professional nobility. However, forcing pro bono work is a violation of individual rights and liberties of lawyers. It jeopardises this professional paid work.

Moreover, the proponents acknowledged that if pro bono work is mandatory, it will act as a thrust.[15] Hence pro bono work become more feasible as lawyers will be more efficient in working. They will make time for pro bono work and produce a higher quality of pro bono work.[16] Even so, it will be ineffective and cause the failure in achieving the objective of pro bono. If it were to be mandatory, lawyers who lacks motivation and expertise will not offer effective assistance to the underrepresented groups.[17] Their insensitivity and inexperience in dealing with low-income clients will compromise the objectives of pro bono. Pro bonowork is supposed to be a work for the benefits of the public. By requiring them to contribute their low quality work cannot solve the problem of unequal access to justice[18].

When pro bono is mandatory, lawyers will also force themselves to give pro bono services, even when it is not required. For example, people who are poor did not prioritise legal advice as they have much more eager needs such as food, shelter and clothing.[19] This forcing in giving legal aid may cause more harm than benefits to the poor. In the end, pro bono will be given to those who ‘want’ but not those who ‘need’.

On the whole, pro bono work enforced by law will be a ‘compulsory charity’. This term is contradicting.[20] Imposing of legal duty on a person also contradicts the essence of voluntary work and charity.

What being ethical means?

Ethics is defined in Oxford Dictionary as ‘moral principles that govern a person’s behaviour or the conducting of an activity.’ [21] In Business Dictionary, being ethical means ‘acting in ways consistent with what society and individuals typically think are good values.’[22] Generally, in the context of legal profession, ethics is a set of ‘moral rules’ set out by legal professional organizations or large law firms for lawyers to follow. Pro bono, is recognised as a good value by most people and therefore is set out as an ‘ethical rule’. Hence, lawyers will have to do pro bono work as an ‘ethical commitment’.  Although this ‘ethical rule’ is not enforceable, still it provides a powerful push.[23]

Ethical issues in an organisation

However, from an institutionalist perspective, in spite of this specific rule, the ethical pro bono work is influenced by organisation such as institution pressure, lawyers’ work place, cultural expectations, market pressures and public preferences.[24] The main reason why lawyers are easily influenced is because they do not provide pro bono work sincerely and merely do it as it is ‘morally right’ to gain public acceptance. Being a lawyer can be challenging as some firms providing pro bono services for the wrong reasons, such as for marketing purposes, which challenges the motives to such an extent that it is not an ethical act. The exploitation of pro bono as an instrument to promote commercial interest conflicts with the professional idea of pro bono as an act of individual kindness.[25]  

Ethics and integrity

Ethics and integrity is different. If pro bono were to be an ethical duty, lawyer will just carry out their duties in accordance to the ‘moral principles’ which was formed by the rules and regulations. Whereas if pro bono work were to be an integral duty, they will show integrity such as being honest and fair when providing legal help. It is obvious that integrity prevails over ethical principle. Hence, pro bono being a personal one is a better choice. When lawyers were given a choice to choose whether to do pro bono work or not, they do their work more willingly, hence will give their best and serve the needs sincerely. As Smith realised that, “the limits of a lawyer’s free public service must be as broad and flexible as his own imagination and experience.” [26] A lawyer that did not do pro bono work cannot be assumed as ‘unethical’ as it will be ‘unethical’ to force lawyers to provide pro bono.  Lawyers should have their own right to choose preferences in doing the work they want to. All in all, lawyers should not be limited to any rules or principles because drawing on studies of helping behaviour, individuals are more likely to provide sustained and quality service if they are doing so voluntarily than if they are fulfilling a requirement. [27]

Lawyers should also be committed to pro bono work in order to provide a good service. This generally means that lawyers should only get involved if they have that commitment. Good quality pro bono will certainly help lawyers to improve their skills in the profession and also develop them to become a better person in life as it exposes lawyers to new perspective on social and other cultural problems unconnected to their experience.

In addition, personal is a better choice as some lawyers may find that contributing cash is far more practical than contributing their time. They may not have the ability to provide free legal advice but they can contribute their wealth, which is much needed in pro bono work. This priceless and unique measure of professional devotion remains the best contribution the lawyer can make to the public interest.[28]

Reform needed?

Although pro bono work being personal is the best choice, there should still be a commitment in making voluntary pro bono as effective as possible.[29] This includes having real incentives for pro bono participation for example providing special benefits to lawyers active in pro bono. There should also be a commitment in improving the resources and operations of the current voluntary pro bono infrastructure so that the existing programs can meet their potential. The current voluntary system is underfunded, unfocused, and inadequately structured. We should strive to make that system function effectively.[30] The involvement of the professional bodies may also be needed to address the delicate balance between ethics and commercialism and to ensure that pro bono publico publicity is used sensitively and to promote the profession as a whole.^[31]

Conclusion

In general, the pro bono system in England and Wales has been improving as there are regulatory bodies of the legal profession such as National Pro Bono Centre and LawWorks. Mandatory pro bono will not increase services, enhance professionalism, or improve the performance of existing pro bono programs.[32] It is the selfless public spirit that defines the legal profession. Pro bono should remain as a personal one to allow individual lawyers unwilling or unable to do without the benefits of law firm employment to shape a meaningful career path that integrates a commitment to public service.[33] God calls upon persons of faith to share their skills and resources with those in need, as is expected of a good neighbour.[34] As mentioned in the bible in Proverbs 31:8-9,

“Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”

If lawyers have the ability to do so, they should always try to help to meet the need.

Bibliography

Primary sources

• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 6
• Legal Aid, Sentencing and Punishment of Offenders Act 2012

Secondary sources

• –Clinics Network Report (LawWorks 2017) <https://www.lawworks.org.uk/sites/default/files/LawWorks%20Clinics%20Report%202016-17.pdf> accessed 15 December 2018
• ‘Ethical behaviour’ (BusinessDictionary.com, WebFinance,Inc. 2018) <http://www.businessdictionary.com/definition/ethical-behavior.html> accessed 18 December 2018
• ‘Ethics’ (OED Online, OUP 2018) <https://en.oxforddictionaries.com/definition/ethics> accessed 18 December 2018
• Abbey R and Boon A, ‘The Provision of Free Legal Services by Solicitors: A Review of the Report of the Law Society’s Pro Bono Working Party’ (1995) 2 International Journal of the Legal Profession 261
• Boon A and Abbey R, Moral Agendas? Pro Bono Publico in Large Law Firms in the United Kingdom (1997) 60 The Modern Law Review 630
• Boon A and Levin J, The Ethics and Conducts of Lawyers in England and Wales (2nd edn, Hart Publishing 2008)
• Boon A and Whyte A, ‘“Charity and Beating Begins at Home”: The Aetiology of the New Culture of Pro Bono Publico’ (1999) 2 Legal Ethics 169
• Cranston R, Large Law Firms and Professional Responsibility (Oxford Scholarship Online 1996) 198
• Cummings S L, The Politics of Pro Bono (2004) 52 UCLA L. Rev. 1, 100
• Editorial, ‘Top-paid silk agrees to work for nothing’ (The Times, 9 Oct 1995) <https://www.nexis.com/docview/getDocForCuiReq?lni=3T2M-7M80-00H1-F2B3&csi=280434&oc=00240&perma=true> accessed 18 December 2018
• Fouzder M, ‘Exceptional case funding scheme ‘inaccessible’, High Court told’ (Law Society Gazette, 10 June 2015) <https://www.lawgazette.co.uk/law/exceptional-case-funding-scheme-inaccessible-high-court-told/5049313.article> accessed 17 December 2018
• Granfield R, ‘The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers’ (2007) 41 Law & Society Review 113
• Lardent E F, ‘Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question’ (1990) 49(1) Md L Rev 78
• Legal Aid Agency, ‘Criminal Legal Aid: Means Testing’ (gov.uk, 1 June 2014) <https://www.gov.uk/guidance/criminal-legal-aid-means-testing> accessed 17 December 2018
• Macey J R, ‘Mandatory Pro Bono: Comfort for the Poor or Welfare of the Rich ‘ (1991-1992) 77 Cornell L Rev 1115
• Manzar S, ‘What is Pro Bono?’ (AllAboutLaw, 22 July 2016) <https://www.allaboutlaw.co.uk/stage/pro-bono/what-is-pro-bono> accessed 19 December 2018
• Maute J L, Changing Conceptions of Lawyers’ Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations (2002) 77 Tul. L. Rev. 91
• Rhode D L, Access to Justice (OUP 2004)
• Smith C H, ‘A Mandatory Pro Bono Service Standard – Its Time Has Come’ (1981) 35 University of Miami Law Review 727

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[1] Sameena Manzar, ‘What is Pro Bono?’ (AllAboutLaw, 22 July 2016) <https://www.allaboutlaw.co.uk/stage/pro-bono/what-is-pro-bono> accessed 19 December 2018

[2] Andrew Boon and Jennifer Levin, The Ethics and Conducts of Lawyers in England and Wales (2nd edn, Hart Publishing 2008) 310

[3] Ibid 311

[4] Editorial, ‘Top-paid silk agrees to work for nothing’ (The Times, 9 Oct 1995) <https://www.nexis.com/docview/getDocForCuiReq?lni=3T2M-7M80-00H1-F2B3&csi=280434&oc=00240&perma=true> accessed 18 December 2018

[5] Robert Abbey and Andy Boon, ‘The Provision of Free Legal Services by Solicitors: A Review of the Report of the Law Society’s Pro Bono Working Party’ (1995) 2 International Journal of the Legal Profession 261

[6]  Legal Aid, Sentencing and Punishment of Offenders Act 2012

[7] Legal Aid Agency, ‘Criminal Legal Aid: Means Testing’ (gov.uk, 1 June 2014) <https://www.gov.uk/guidance/criminal-legal-aid-means-testing> accessed 17 December 2018

[8] Monidipa Fouzder, ‘Exceptional case funding scheme ‘inaccessible’, High Court told’ (Law Society Gazette, 10 June 2015) <https://www.lawgazette.co.uk/law/exceptional-case-funding-scheme-inaccessible-high-court-told/5049313.article> accessed 17 December 2018

[9] –Clinics Network Report (LawWorks 2017) <https://www.lawworks.org.uk/sites/default/files/LawWorks%20Clinics%20Report%202016-17.pdf> accessed 15 December 2018

[10] Deborah L. Rhode, Access to Justice (OUP, 2004) 227

[11] ibid

[12] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 6

[13] Rhode (n 10)

[14] ibid

[15] Ross Cranston, Large Law Firms and Professional Responsibility (Oxford Scholarship Online 1996) 198

[16] Esther F.Lardent, ‘Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question’ (1990) 49(1) Md L Rev 78

[17] Rhode (n 10)

[18] ibid

[19] Jonathan R. Macey, ‘Mandatory Pro Bono: Comfort for the Poor or Welfare of the Rich ‘ (1991-1992) 77 Cornell L Rev 1115

[20] Rhode (n 10)

[21]‘Ethics’ (OED Online, OUP 2018) <https://en.oxforddictionaries.com/definition/ethics> accessed 18 December 2018

[22]‘Ethical behaviour’ (BusinessDictionary.com, WebFinance,Inc. 2018) <http://www.businessdictionary.com/definition/ethical-behavior.html> accessed 18 December 2018

[23] Cranston (n 15)

[24] Robert Granfield , ‘The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers’ (2007) 41 Law & Society Review 113

[25] Andrew Boon & Avis Whyte ‘“Charity and Beating Begins at Home”: The Aetiology of the New Culture of Pro Bono Publico’ (1999) 2 Legal Ethics 169

[26] Chesterfield H. Smith, ‘A Mandatory Pro Bono Service Standard – Its Time Has Come’ (1981) 35 University of Miami Law Review 727

[27] Mark Sobus, Mandating Community Service: Psychological Implications of Requiring Prosocial Behaviour (1995) 19 Law and Psychology Review 153, 163

[28] Smith (n 26)

[29] Lardent (n 16)

[30] ibid

[31] Boon and Levin (n 2)

[32] Lardent (n 16)

[33] Scott L. Cummings, The Politics of Pro Bono (2004) 52 UCLA L. Rev. 1, 100

[34] Judith L. Maute, Changing Conceptions of Lawyers’ Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations (2002) 77 Tul. L. Rev. 91