Bindman argues that before today’s legal aid system was established 60 years ago by the Attlee government, lawyers recognised a collective responsibility to meet the needs of those who could not afford legal fees. The scheme is now in a sorry state: eligibility dropped from 80 per cent at the time of Attlee to around two-thirds of the population in the mid-1980s, before unravelling dramatically under New Labour from 50 per cent in 2000 to 29 per cent in 2007. Meanwhile there has been a steady exodus of lawyers from poorly-remunerated and overly-bureaucratic legal aid, as well as increasing pressure on the not-for-profit network of law centres and citizens advice bureaux. Bindman is urging the richest part of the profession to once again recognise its part in the “collective responsibility” to the poorest.
Unsurprisingly, Bindman’s radical call for a lawyers’ levy finds little support in the City’s legal pro bono community. “I’d worry that a straight tax on firms would risk significantly undermining the kind of work that many of the top law firms are doing and which in some firms has become institutionalised as part of the culture,” comments Michael Smyth, director of public policy at Clifford Chance.
Before introducing a levy “you ought to be very clear they the amount that you raise will exceed what is currently given”, counsels Guy Beringer, former senior partner at Allen & Overy. “Or you might end up simply moving the funding elsewhere.” Plus, he asks what qualifies as a City firm. Would that include, for example, Bindman’s own?
Of course, City firms have dug deep and supported social welfare law projects (in particular, the not-for-profit sector), even though formal schemes to raise funds have been
resisted. For example, A&O’s call on firms to donate the interest they earn by consolidating client account money was unsuccessful. So called Iolta (Interest on Lawyers’ Trust Account) schemes are popular in the US but apparently not in the UK.
A&O, together with the London office of Weil Gotshal & Manges, uses the interest to give about £50,000 a year to the London Legal Support Trust. More recently, the Access to Justice Foundation was set up in 2008. One of the ideas behind it was to distribute funds raised under the Legal Services Act 2007, section 194, which enables courts to make costs orders where the successful party was represented by a pro bono lawyer – again, take up has not been great.
But Bindman’s contention that the City’s much trumpeted pro bono work has “very little to do with meeting the broad mass of legal need” is a point well made. He argues that pro bono, insofar as it engages with social welfare law, tends to be London-centric and, at worst, smacks of City firms letting their young and inexperienced lawyers “cut their teeth” on vulnerable and poor clients.
Legal aid lawyers are suspicious of ministers trying to co-opt pro bono to offload their responsibilities and slash the legal aid bill, despite assurances to the contrary. The official line is that pro bono is “an adjunct to, not a replacement for legal aid”. “It’s easy for lawyers to say the government should put up the money – and I think it should,” Bindman says. “But I don’t think the profession, particularly affluent commercial lawyers, should feel that they can simply wash their hands of legal aid.”
SOCIAL WELFARE SUPPORT
Clifford Chance’s Michael Smyth agrees. “Our default obligation is its ‘access to justice for the poor’ and above all else, our pro bono programs are about social welfare law support,” Smyth says. He argues that it is particularly important for firms to restate their commitment to access to justice for the vulnerable locally and not to be attracted by the lure of upscale international pro bono projects.
Neil Kinsella, chief executive of Russell Jones & Walker is no fan of a levy either (“… it looks suspiciously like an unofficial tax…”) but he also wants the profession to once again recognise its collective responsibility. He wants to see greater coordination of pro bono through a body that we can trust. “There needs to be more debate about what is a ‘good’ pro bono project and possibly even setting out expectation in the form of a voluntary code as to what proportion of turnover firms should be putting in, what sort of projects and whether should you be concentrating locally, nationally and internationally.” Pro bono is “a little bit like foreign aid and very often you can find that you are doing the wrong things if you are not careful”, Kinsella says.
Closing the Justice Gap is a collection of essays about the future of legal aid edited by Jon Robins and is due to be published by Jures (www.jures.co.uk) in association with the Solicitors Journal and Young Legal Aid Lawyers in April.