Cracking up

As legal aid comes under the strain of budget cuts, pro bono work by commercial law firms is helping paper over some of the cracks, playing a critical role in helping to close the justice gap

It’s a scene far removed from Canary Wharf. In the offices of a small legal aid firm in Acton, two young children are playing at a desk with some dog-eared magazines while their dad talks to a lawyer. Their mother died last year and their Ghanaian father is living illegally in the UK. They’re homeless and living out of a suitcase in a B&B.After 40 minutes, several phone calls and lots of questions, the young lawyer talks the man through the options: either his children get taken into care or the family gets sent back to Ghana. ‘I’m afraid there is nothing more we can do. I’m really sorry,’ she says.

The advice comes, not from a legal aid lawyer, but a Clifford Chance trainee, Michelle, seconded to the legal aid firm for three months as part of her training. The Magic Circle firm has been involved with Law for All, a not-for-profit legal aid firm in Acton, for over eight years. As part of the scheme, CC sends five trainees at a time on a three-month rotation, which the firm claims is equivalent to donating £350,000 a year. Michelle provides an extra pair of hands at a firm that is stretched to capacity.

In reality pro bono work can be gritty, mundane and slightly depressing stuff. With cuts to legal aid looming, the already shrunken pot of money for legal aid lawyers looks set to decline further.

In June, Justice Secretary Kenneth Clarke announced his commitment to cut 25% from the Ministry of Justice’s £9bn budget. He’s admitted that he cannot slash a quarter of the £2.4bn prisons budget, which means the bulk of savings are likely to come from legal aid and courts administration. Most believe the biggest savings will be trimmed from the £900m a year spent on civil legal aid in England and Wales, and of that immigration and housing will be some of the hardest hit areas. The growing pro bono programmes of commercial law firms is one way they can help plug this gaping hole.

‘The trainees love that they don’t know who’s going to turn up on the night. It’s great experience.’
Michael Ashe, South West London Law Centres

Bob Nightingale, chief executive of the London Legal Support Trust and former director of the South West London Law Centres (SWLLC), is looking for more commitment from commercial firms to pro bono. ‘I’m hoping for greater depth of help from commercial firms,’ he says. ‘Doing more pro bono, but also helping with leases, archiving files, seconding trainees, all that kind of stuff. Areas of legal aid are going to go missing and pro bono is going to become more important,’ he says.

Live aid

The signs of legal aid firms and charities feeling the pinch are clear to see. In June, Refugee and Migrant Justice, a charity providing free legal advice to asylum seekers and migrants, closed its doors. The charity, which had over 10,000 clients, blamed the new system of payment of legal aid. This month it’s feared that thousands of family law firms – nearly half the total in England and Wales – are expected to go out of business following the award of new legal aid contracts. Eligibility is also being squeezed. In 1949 when the Legal Aid and Advice Act passed through Parliament, 80% of people were eligible for legal aid, but now just one in three qualifies for support.

Spending on civil legal aid rose from £719m to £914m over the past nine years. However, much of that increase is put down to increasing complexity in cases, including using expert witnesses and interpreters. On paper, pro bono is a neat fit with the coalition government’s big society programme – getting lawyers to do things for free means you don’t have to pay public servants to do them for you. But in reality, pro bono will never be a substitute for a properly funded legal aid system.

‘I can understand why legal aid lawyers get the hump when City lawyers come charging in.’
Bob Nightingale, London Legal Support Trust

‘Pro bono is clearly an aspect of the government’s big society. Professionals have long provided various resources for the government to draw upon but pro bono is no substitute for a properly funded legal aid system,’ says a spokesperson for the Bar Council. ‘However, we recognise that the government cannot pay for every possible legal need, which is where pro bono can help.’

City firms echo that sentiment. ‘With the best will in the world pro bono cannot replace legal aid,’ says Kathryn Cearns, a consultant at Herbert Smith. ‘It’s very difficult to see how anyone can make up for the cuts. It’s a question of resources and money, but also expertise. Legal aid is the best way of doing things on the whole.’ But although it can never be a substitute, there is room for firms to do more.

Room for improvement

Put in context, the £900m spent each year on civil legal aid is smaller than the annual turnover of each of the top four UK firms. CC, Linklaters, Freshfields Bruckhaus Deringer and Allen & Overy all have annual revenues that are higher than all the public money spent on care proceedings for vulnerable children, work for asylum seekers and defending people who’ve been swindled by crooked landlords.

Research by LB shows that pro bono contributions in the UK vary widely between firms. At Beachcroft 8% of lawyers did more than 20 hours worth of pro bono last year. That compares with 32% of lawyers at Wragge & Co. The average Linklaters lawyer, meanwhile, performed 18.6 hours of pro bono work last year.

In the US, where there is only limited legal aid, it is perhaps unsurprising that law firms do much more pro bono. The American Bar Association says that 73% of lawyers do some pro bono work. The contribution of most US lawyers has increased massively in the past ten years, thanks in part to pressure from publications like The American Lawyer, which publish pro bono rankings, thus naming firms that don’t pull their weight. At the firms rated top for pro bono by the magazine it’s not unusual for the average lawyer to spend over 100 hours a year doing pro bono work. The average lawyer at Jenner & Block – currently ranked number one in the pro bono charts – did 161 hours in 2009, and over 83% of the firm’s lawyers did more than 20 hours.

‘Pro bono is very nice and admirable, but someone who is a very good commercial lawyer may not have a clue about housing or immigration issues.’
Laura Janes, Young Legal Aid Lawyers

Pro bono schemes at US firms are frequently better structured than at UK firms, with robust commitment from management. Most big US firms have a dedicated pro bono partner (and co-ordinator) and have target hours to be met. While many of the largest UK firms do have pro bono partners, just a handful, like Hogan Lovells and A&O, have staff dedicated solely to co-ordinating pro bono activities. Indeed many of the top UK firms, do not even have systems in place to record the pro bono hours they perform. Norton Rose, for instance, which by all accounts has a respected pro bono scheme, is only just considering monitoring its hours. ‘We’ve just never captured hours. We’re a little bit wanting on that,’ admits Patrick Farrell, pro bono and community affairs partner at Norton Rose.

At SNR Denton, US pro bono partner Ben Weinberg believes that firms with partners who lead on pro bono have the strongest programmes. ‘The junior lawyers are savvy, they want to succeed, if they see the top people supporting pro bono, they’ll go for it,’ he says. ‘The co-chair of our class action practice is on our pro bono committee. The junior lawyers know that if they want to impress her they need to do pro bono,’ adds Weinberg.

But the outlook in the UK does look positive; anecdotally at least young lawyers are more engaged with pro bono than older colleagues. ‘We see a constant appetite from trainees and juniors, an expectation that they will be able to do pro bono,’ explains Lorna Gavin, head of corporate responsibility at Wragges. ‘Certainly compared to the older lawyers where it is more of a mixed bag,’ she adds. As they move through the profession it’s likely that pro bono will become more entrenched across firms. The demand is certainly there.

Gone to the dogs

In South London in early September, a queue of about 15 people is forming outside the scruffy blue door of the Battersea Citizens Advice Bureau. The clients are here to unload their legal problems to trainees and partners from A&O, K&L Gates, Weil, Gotshal & Manges, and Simmons & Simmons who provide advice to drop-in clients every night of the week. It’s traditional bread and butter pro bono work.

In the offices above the CAB, up some threadbare stairs patched with brown tape, Michael Ashe, the youthful chief executive of SWLLC, oversees the operation. Sat next to a broken filing cabinet, Ashe, who sports shoulder-length blond hair, enthuses about the benefits of volunteering. ‘The trainees love that they don’t know who’s going to turn up on the night. It’s great experience,’ he says. Ashe joined SWLLC in 2008 from the Big Lottery Fund, taking over from pro bono veteran Nightingale.

He runs a network of six law centres across south London, with 45 paid staff running drop-in clinics and doing some legal aid work. But it’s been a tough year for the SWLLC. Changes to the way legal aid payments are made has meant that SWLLC has struggled to stay open.

‘The junior lawyers are savvy, they want to succeed, if they see the top people supporting pro bono, they’ll go for it.’
Ben Weinberg, SNR Denton

Despite receiving a steady stream of City lawyers to support its work, the organisation almost went into administration in September last year. It only just managed to scrape together the money to stay afloat before A&O stepped into the breach, seconding an associate for three months and lobbying the government for funding.

‘The past year has been extremely stressful, there were a lot of tears,’ Ashe reflects. ‘I just wish there was one day in this job where I didn’t have to think about our survival. I really couldn’t put a value on the help A&O provided us, we wouldn’t exist now if it wasn’t for their support.’

Some new thinking

The combination of seeing clients face-to-face, as well as providing back office support is a compelling model. It uses the skills that commercial firms have in spades: knowledge of business structures, contracts and litigation experience that many legal aid firms and charities need. It can also provide much needed extra capacity for organisations like SWLLC that do front-line legal work. Other organisations are also grateful recipients of private practice fee-earners – Linklaters and Wragges, for example, send trainees to The Prince’s Trust and Oxfam respectively.

As part of its pro bono work, Hogan Lovells has teamed up with one of its most significant clients. The firm has been working with ITV’s in-house team, providing legal advice to clients of Body & Soul, a charity for people with HIV and AIDS. Hogan Lovells and ITV lawyers work together to deliver advice on issues such as immigration, housing and discrimination to vulnerable clients. They lean heavily on a two-inch thick handbook to guide them, but if a problem is too specialised they refer it to legal aid lawyers at Wilson Solicitors, based in Tottenham. ‘It wouldn’t work without Wilson, we are corporate lawyers, so won’t do anything that we can’t handle,’ says Yasmin Waljee, international pro bono manager at Hogan Lovells.

‘With the best will in the world pro bono cannot replace legal aid. It’s difficult to see how anyone can make up for the cuts.’
Kathryn Cearns, Herbert Smith

The team at Hogan Lovells also helps the charity with back office matters, and helped negotiate leases to purchase their new building in Farringdon.

Barry Matthews, head of legal at ITV, is positive about what the two can achieve together. ‘It’s a great structure, if I went to my financial director and asked for a full-time pro bono person, it would raise some eyebrows. But we can do a lot working with Lovells.’

But the worry is that letting loose inexperienced corporate lawyers on vulnerable clients could backfire. Do commercial lawyers, more used to M&A transactions than dealing with Hounslow council, have the skills to advise on social welfare issues?

Laura Janes, chair of Young Legal Aid Lawyers, doesn’t think so. ‘I don’t like pro bono. It’s very nice and admirable but someone who is a very good commercial lawyer may not have a clue about housing or immigration issues,’ she says dismissively.

Nightingale, who now runs the London Legal Support Trust, has his own take on the hostilities of some legal aid lawyers to pro bono: ‘I can understand why legal aid lawyers get the hump when City lawyers come charging in. But the reality is that pro bono has never taken work away from legal aid lawyers.’

Covering the patch

There can be little doubt that UK firms have grown their pro bono contributions and have become far better organised in supporting both domestic and international causes. But with legal aid budgets stretched, now is the time for commercial firms to do more.

‘If legal aid covered the patch then that would be great, but it never has and never will,’ Nightingale argues. ‘There is going to be more for pro bono lawyers to do because there won’t be any other services for people that can’t pay. It would be nice if law firms could chip in, but it will always be a drop in the ocean.’

Back in Acton, Michelle admits that at times it feels as though she’s swimming against the tide. ‘So often you just hit a brick wall. It’s endlessly frustrating,’ she sighs as the Ghanaian father leaves with his children. Her last case of the morning is a 60-year-old Polish man with lung cancer who has just been denied incapacity benefits. His son acts as an interpreter while Michelle writes a letter to the Department for Work and Pensions and fires off short, practical questions: ‘Can you walk to the bus stop? What about turning on a tap?’ Client service can mean very different things. LB