Thursday, 25 June 2015

Pro Bono and the City

A recent speech by Michael Gove, the new Lord Chancellor and Secretary of State for Justice, tackled a wide variety of issues relating to the legal profession, access to justice and the rule of law. One of the more controversial of his comments related to pro bono work and the contribution that might be made by lawyers in highly profitable City firms such as the Magic Circle. He said the following:

I know that many of the most prestigious chambers at the Bar and many of the top solicitors’ firms already contribute to pro bono work and invest in improving access to the profession. Many of our leading law firms have committed to give 25 hours pro bono on average per fee earner each year.

That is welcome, but much more needs to be done.

Last year, according to a survey by the Law Society, 16% of solicitors in commerce and industry provided an hour or more pro bono work. When it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the minimum wage.

As many other commentators have pointed out, it is not clear exactly what Mr Gove is proposing in the last sentence copied above. It may be, as would seem consistent from the previous two paragraphs, that he is proposing that large corporate and commercial firms should do more pro bono work; alternatively, it may be that he is suggesting that they ought to make some kind of financial contribution towards access to justice.

The first alternative is a horrifying thought to many in areas of law which are now or were historically covered by legal aid. It suggests an American-style system in which solicitors in large corporate firms come down to the law centre or to the legal aid firm in order to ‘do their bit’ and fulfil their pro bono requirements.

On the face of it this may not seem problematic. Why shouldn’t wealthy city lawyers have to give back? Wouldn’t it be good for them to see what those of us in legal aid law face day after day? But this overlooks the crucial point: one cannot dabble in legal aid law. Each area of legal aid law is just as highly specialised, just as complex, just as intricate and just as difficult as any area of corporate law, be it banking or tax or even maritime law. It takes years of study and training to become anywhere near competent in any given area of legal aid law: in fact, it is as ludicrous to think that Henry from the wealth management department of a Magic Circle firm might be able to come down to Wainwright & Cummins and do my job for a day as it is to consider that I might just be able to turn up in his office and successfully help a very wealthy individual avoid tax (or whatever it is that wealth management lawyers do).

Unfortunately, this kind of thing does happen in America, frequently with disastrous results. People who have specialised in entirely different fields think that they are able to assist with, for example, the defence of someone accused of a felony – because after all, legal aid lawyers aren’t paid much, so the job can’t be that hard – and inevitably completely muck it up, leading to years of appeals and delays as genuine specialists try to undo the damage.

So, I sincerely hope that this is not what Mr Gove was trying to suggest. Perhaps instead he was trying to say that city firms ought to financially support access to justice, for example by making donations to law centres or other pecuniary assistance. This is a far more reasonable proposition.

I should first state that in my opinion, access to justice and the provision of legal aid should be the responsibility of the government. No one should have to rely on charities, the goodwill of wealthy individuals, or voluntary donations, in order to have access to justice. However, in this age of austerity, access to justice is shrinking ever further, and in those circumstances it is difficult to oppose anything that may allow people to get legal advice, even if that advice clearly should be state-funded rather than funded through charitable donations.

Mr Gove’s speech was largely free of detailed policy proposals. However, some have been mooted by commentators: for example, the donating by city firms of a small percentage of the interest from monies kept in client accounts (the interest, even if at a very low rate, of a very large amount of money, quickly becomes enormous, and not all of it must necessarily go to the client – each firm will have a different policy relating to interest). Another alternative may be to charge firms doing little or no legal aid work a higher price for their practising certificates: for example, a firm doing over 50% legal aid work might pay current rates for their practising certificates, while a firm doing under 50% or under 25% legal aid work might pay a higher rate. This would effectively lead to an additional sum of money being raised in payment for practising certificates, which could be used to support access to justice: at present a firm doing entirely legal aid work must pay the same as a magic circle firm for practising certificates for fee earners.

A further idea might be that instead of the Legal Aid Agency sponsoring training grants for new legal aid lawyers, as they have historically, a City law firm might choose to do so instead - they could put aside a small amount of money (as legal aid trainees cost far less than they pay their current trainees!) into a central fund, which could be given out to promising legal aid lawyers who need a training contract. This would enable legal aid firms to take on more trainees - indeed, at present many legal aid firms cannot take on any trainees at all - without the financial burden that is inherent in training new solicitors. It would widen access to the profession by encouraging applicants without family financial support or from non-traditional backgrounds; and wouldn't it be great PR! 'A social welfare and immigration training contract sponsored by... [insert a City firm here!]'

These are just a few of many alternative proposals which might be suggested to encourage the City firms to contribute more to the upkeep of the profession. While articles are written about the ‘good times returning’ to the City, and corporate firms are raising their trainee and NQ salaries to ever more extraordinary levels (in some cases trainees earn over £50,000 per year and NQ solicitors earn over £100,000), austerity is cutting ever deeper for legal aid firms. British justice is not renowned the world over simply for the brilliance of our corporate firms – though no doubt they are brilliant – it is known for delivering justice for all, including the poor and the unpopular. The Government seems determined to make it ever more difficult for us to continue assisting the vulnerable; might the City now come to our aid?

The views expressed do not necessarily reflect those of the firm or its partners.

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