November 21 2023

Legal aid and pro bono

Legal aid and pro bono

Legal aid solicitors have a difficult relationship with pro bono work and have done over the last 20 or so years. Over that period we have all had to work a lot harder for a lot less. Make no mistake, pro bono is not something that I have turned my back on.

I can well recall working for a group of elderly Rent Act protected tenants in a block of flats in Kensington, who due to fairly small savings would not have qualified for legal aid but were being persecuted by a really most unpleasant landlord. That case turned into a three week trial in the County Court.

Equally, when another group of tenants were being hounded by that well known rogue landlord, Nicholas Van Hoogstraten, I acted for a group of some 30 tenants in a campaign to get their properties compulsorily purchased by the local authority. I needed leading counsel’s opinion and representations had to be made to the local authority. Needless to say, we were successful.

Both of these cases involved enormous amounts of work for which we were not paid but for which we were overjoyed to be part of as the end result was enormously successful for our clients. Sadly, with the onset of a cripplingly bureaucratic legal aid regime which has suffocated the legal aid profession with paperwork, audits and a never ending stream of change, we are left with no free time to do free work for clients. My margins are now so tight that, if I were to do work pro bono, this would impact on my ability to practise.

Legal aid lawyers would certainly say that, in any event, we do large swathes of work for nothing in any event as we have bills of costs ruthlessly assessed by the Court and the Legal Services Commission, whereas often with privately paying customers fees are easier to come by.

Nevertheless, there are many firms out there that will show that they are doing large amounts of pro bono work but what does this mean? Some firms refer to pro bono work when trainee solicitors go to a local school to teach 11 year olds to read. Others may simply have a trainee solicitor on secondment in a legal aid firm paying their salary. But is that really pro bono work? True pro bono work would be a firm of solicitors doing work for nothing for a client simply because, in their judgment, that client does not have sufficient means to pay their fees and does not qualify for public funding.  Increasingly, that formula would apply to a very significant percentage of the population. How then is that choice to be made? Who will make the choice? Who will be the lucky ones who will get representation, and how will the very many who are turned down have their cases dealt with?

Oddly enough, the pro bono contingent seem to be fairly unregulated.  Decisions are made about who will be represented on a seemingly very fickle and unscientific basis. Some are lucky and some are not.

When I was able to do pro bono work, I liked to act for groups of people with meritorious claims which could otherwise not be brought. I still have quite a warm glow about the work that I did in the early 1980s. It is undoubtedly the case that, if I had not been enmeshed in legal aid bureaucracy, I would have had some time for the pro bono cases.

Only today I was asked to represent a large group of residents in Lewisham who had an extremely interesting legal problem but, because of their disparate incomes and capital, would not be able to qualify for public funding and they were certainly looking for a pro bono provider but to date had found nobody willing to undertake their case.

Sadly, it would seem that pro bono is these days seen as something of the conscience of the profession. Firms of solicitors charging £850 per hour know deep down that they have a responsibility to the wider society. They try to discharge that responsibility by plugging in to the pro bono bandwagon.  Whether they are the best people to do it, I simply do not know. What I am sad about is that firms like mine, who are well prepared to deal with such matters, simply cannot afford to do so any more.