Should pro bono be mandatory?

In this guest post, Lucy Pettinger, a current Open Justice student, tackles the issue of whether or not UK lawyers should be obliged to offer their services for free to some clients. She makes a strong case that although pro bono should be promoted, much would be lost if it were made compulsory.

Pro bono or pro bono publico can be translated from the Latin as ‘for the public good’, a service donated most often on a voluntary basis. The act of volunteering comes from a place of passion, empathy and good will, so making it compulsory may go against this essence and undermine the enthusiasm and passion that comes with volunteering. Moreover, those who do not believe in it may show dispassion and lack of sensitivity to clients’ needs and treat them differently from fee-paying ones. A better solution would be to create and embody a pro bono culture into the legal profession, with the participation in such schemes coming from the individual out, and not from the State in.

Making the activity of pro bono compulsory may place an unfair encumbrance on lawyers, particularly for those working in smaller practices that are already under resourced. Moreover, firms that presently practice in areas of law under legal aid will be under more pressure; so the solution should rather be to institutionalise it and implement a target-based system, with larger commercial firms enjoying larger objectives in end-to-end cases.

From another more pragmatic view, if these regulations are enforced, how would non-compliance be punished? Would there be enough lawyers to fill the gap created by legal aid cuts, especially in areas of specialist law? Are there enough resources available? The likely answer is no, for there is evidence that even before LASPO, there wasn’t enough legal aid so it is unlikely that pro bono can facilitate this effectively.

More importantly, I feel that regulating in this area would be a regression in the development of the legal system. For it can be perceived as a step away from the government’s responsibly and obligation to ensure the right to a fair trial is upheld, as required by Article 6 of the ECHR.

Recognising that access to justice and equality before the law is intrinsic in a democratic society, this cannot be the solution to the problem. While understanding that a considerable, and increasing proportion of the population are being denied access to justice, it is clear many of the problems reside in the administration of justice and legal system as a whole. This is what needs to be addressed, acknowledged and reformed; the roots of the problem not the leaves. For it cannot fall on the charity sector to water the legal deserts created by LASPO, for it will only expand.

On this note, I therefore believe there should be a strong commitment from the legal profession to provide pro bono work, both in the public interest and benefit of the student or lawyer offering their services, but it should not replace the properly funded legal aid community. It should seek to work in collaboration and corporation with legal aid institutions to bring the right specialism to the right case. To serve the population as a whole and ensure that the rich do not have greater rights of access, but the rule of law is upheld and applied equally to everyone. In conclusion, pro bono services must work in alliance with the legal aid community to better achieve access to justice in a supportive role, not a replacement role.