Afua Hirsch’s Guardian story on legal aid is a timely reminder of the toxic link between legal aid and pro bono work. As a former trustee of a Wales charity aiming to promote pro bono work (Reaching Justice Wales), I know that the clearest and easiest way to build up professional resistance to the merits of pro bono is to suggest it can be an alternative to legal aid. Whether it is a reason or an excuse the most commonly given explanation for reluctance to get more involved in pro bono work is that it provides a pretext for governments to cut legal aid. In linking legal aid and pro bono any politician risks reducing levels of pro bono work. It would be far wiser to separate the two ideas as completely as possible. Pro bono is a good thing for the clients and the lawyers. It provides much needed good PR for beleaguered lawyers. But the simple truth is that suggesting it should replace legal is likely to mean fewer lawyers are willing to do it.
There are a number of reasons why pro bono cannot act as a replacement for legal aid: one is the size of the legal aid scheme. When the Law Society used to publish income data for the profession legal aid pealed at about £1 in every £8 of the profession’s income. Since then the significance of legal aid to the profession as a whole has almost certainly diminished but it remains a service provided at levels well beyond the reach of a pro bono service. It would simply be impossible to provide even a fraction of the service by voluntary pro bono schemes. Similarly, a lot of legal aid work is highly specialised and beyond the competence of ordinary solicitors. Like any area of work: most legal aid lawyers have specialised. Pro bono lawyers need to be exceptionally motivated to invest the necessary effort in training and updating to reach similar standards of quality.
There is another problem: pro bono provision is likely to be very unevenly spread geographically. US research by Beccy Sandefur shows that it is richer firms that tend to do more pro bono. In UK terms this is likely to mean that pro bono effort is at its highest in London and at its lowest elsewhere.
The reasons for such firms doing pro bono also bear examination: there is a substantial element of PR and there is a training element (in competing for trainees firms need to be seen to be doing pro bono and also use it to provide training in case skills that lawyers would not otherwise get for many years in large corporate firm contexts). I do not criticise these motivations: they lead to good work being done – but those motivations inevitably shape what is done and how it is done. The combined impact of this and the geographic effects mean that pro bono is a lottery of postcodes and priorities: the chance of corporate firms meeting the most pressing legal needs of the population is remote, with unpopular clients and hard and un publicity worthy cases being the biggest losers. Outside of London, the prospects grow remoter. Talk up pro bono as a replacement for legal aid and they grow remoter still.