Can enlightened self interest be compulsory?

Lawyers don’t always get the best press, but every so often even I have to concede they deserve some good PR.  This week the Law Society launched a national pro bono helpline for victims of the recent riots.  To those of you who aren’t lawyers (and I’m not, but I spend an awful lot of time around them) that means free help and advice. This is undeniably a good deed and a far more useful response to the riots than anything the government has so far come up with.

Arguably, lawyers have a social duty to do pro bono work and, as the helpline shows, many already do.  However, as legal aid cuts bite, the chances are there simply won’t be enough to go round.  Figures suggest that US firms already do four times the pro bono work of their UK contemporaries (although there is less state-funded legal aid) so it can be done.  But how do we make this happen?

It isn’t hard to see that just attending the odd legal advice clinic or signing up to the latest pro bono helpline isn’t going to be enough.  Furthermore, pro bono work is a bit like foreign aid: it can do more harm than good, and I’ve heard legal aid lawyers say that city firms should ‘stop meddling just to make themselves feel better’.  It must certainly be true that in many cases lawyers who make their bread and butter on mergers and acquisitions aren’t necessarily going to be best equipped to provide pro bono welfare advice.  Such inputs could also be counterproductive, creating a dependency in some law centres and legal charities on ‘aid’ rather than developing a self-sustaining model.  Controversial?  Well so is foreign aid.

On the other hand, it was very hard to get the firm I used to work for to take any sort of co-ordinated approach to pro bono work.  Many departments just preferred to do their own thing – usually helping existing clients or, if they were lucky, taking on a high-profile case.  Some thought they didn’t have time.

Given this patchy approach, should it be compulsory for all lawyers to do pro bono work?  The £350m cuts to legal aid mean this may be the case if lawyers are to undertake their professional duty to uphold the rule of law.  In some US states it is already compulsory and lawyers have to give 15 or 20 hours a year to help the needy and poor (although in Mississippi and California $500 (£300) will get you an exemption, which seems a bit cheap to me).  I applaud this, although I don’t know its impact, but making pro bono work compulsory may not be as beneficial as it first appears.

From a practical point of view, I am not sure there is enough willingness to make it happen.  A quick search on the internet doesn’t suggest overwhelming support for the idea from the profession and no desire from government.  Mind you, if we only did things supported by lawyers and the government nothing much would change (ref. the Legal Services Act).

A compulsory scheme would probably need to be co-ordinated nationally to ensure resources were properly targeted and needs adequately met.  I have discovered that co-ordinating lawyers is a bit like herding cats; I imagine co-ordinating law firms nationwide would be much the same thing, only with bigger cats.  And should it apply to all lawyers or only the fat cat type?  Certainly the ones I worked with were convinced that, as claimant lawyers, they were already on the side of the angels (disputable).

But a more fundamental concern is that making mandatory something that is essentially voluntary undermines its very effectiveness.  Pro bono work often benefits both giver and receiver because each is fully committed and involved.  Compulsory pro bono work could have the perverse effect of driving up the participation rates but decreasing the quality of the work and reducing that vital ‘feel good factor’.

If compulsory pro bono isn’t the answer, what is?  The Access to Justice Foundation raises money under section 194 of the Legal Services Act, which allows the court to order the losing side to pay pro-bono lawyers’ notional costs.  The cash is then distributed to law centres and charities providing legal assistance to those in need.  So far so good, but this still requires lawyers to give their time pro bono.  The trick is encouraging them to do it.

As in many areas of life, there probably needs to be a carrot and stick approach.  So here are mine.  The carrot is that lawyers should be able to trade off some or all of their 16 hours a year CPD requirement to do pro bono work.  This already happens in the US and it would seem to me to be far more beneficial for developing a lawyer’s skills than sitting in a conference or seminar (I’ve been to some of them).

The stick is a national league table of law firms’ participation in pro bono work, naming and shaming those that do none, although also providing good PR for those doing loads.  Again, the US already does this (notice a pattern?) but there has been strong resistance from the profession here; and since few UK firms even collate pro bono information in any meaningful way it couldn’t happen overnight.

Still, just because something is difficult doesn’t mean it isn’t worth doing.  And just because the profession don’t like an idea doesn’t mean it’s a bad one (ref the Legal Services Act again).  The legal aid cuts will put serious strain on the profession’s duty to uphold the rule of law, but it also presents them with the opportunity to redeem their reputation once and for all.  I hope they take it.

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